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[2008] ZASCA 47
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S v Geldenhuys (470/2007) [2008] ZASCA 47; 2009 (1) SACR 1 (SCA); [2008] 3 All SA 8 (SCA); 2008 (9) BCLR 940 (SCA) (31 March 2008)

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REPUBLIC
OF SOUTH AFRICA
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
Case
number: 470/2007
In
the matter between:
IZAK
ANDREAS GELDENHUYS
Appellant
and
THE
STATE
Respondent
CORAM
: STREICHER,
CAMERON, NUGENT, VAN HEERDEN JJA and KGOMO AJA
HEARD
:
26 FEBRUARY 2008
DELIVERED
:
31 MARCH 2008
Summary:
Sexual Offences Act 23 of 1957 – constitutional
validity of ss 14(1)(b) and 14(3)(b) of Act – distinction drawn
between heterosexual
and same-sex sexual activities by setting legal
age of consent at 16 and 19 years, respectively, held to be
unconstitutional –
severance and reading-in so far as to make legal
age of consent in respect of both heterosexual and same-sex sexual
acts 16 years
– qualified retrospectivity of the order of
constitutional invalidity – appeal against conviction on six counts
relating to
same-sex sexual acts with boy over the age of 16 years
but under the age of 19 years set aside, subject to confirmation by
Constitutional
Court of order of constitutional invalidity – appeal
against convictions on four counts in respect of sexual acts at times
when
boy in question under the age of 16 years dismissed.
Neutral
citation:
This judgment may be cited as
Geldenhuys v The State
(470/2007)
[2008] ZASCA 47
(31 March 2008)
____________________________________________________________________
JUDGMENT
____________________________________________________________________
VAN
HEERDEN JA
Introduction
[1] During
2004, the appellant was charged, in the Regional Court held at
Pretoria, with 13 counts of indecent assault. The complainant
in
respect of each of the first 11 counts was L B, born on 29 June 1983,
while counts 12 and 13 related to A, L’s younger brother
by
approximately seven years. The State withdrew count 5 on the first
day of the trial and the appellant pleaded not guilty to
all the
remaining charges, his defence being a complete denial. On 9 February
2005, the appellant was found guilty of ten counts
of contravening
s 14(1)(b) of the Sexual Offences Act 23 of 1957 (the Act), viz
the commission of indecent or immoral acts
with L (the complainant),
a boy under the age of 19 years at the relevant times. The regional
magistrate, Mr Travers, acquitted
the appellant on the two counts
relating to the younger brother. On 8 July 2005, the appellant was
sentenced to imprisonment of
one year each on six of the ten counts
and, on the remaining four counts, to imprisonment of 15 months each,
the total term of
imprisonment thus being 11 years.
[2] With
the leave of the Regional Court, the appellant appealed to the
Pretoria High Court against both conviction and sentence.
On 21
November 2006, his appeal against conviction was dismissed
(Hartzenberg J, Poswa J concurring), but his effective sentence
was
reduced to 7 years’ imprisonment. The High Court granted leave to
appeal to this Court against both conviction and sentence,
but the
appellant does not persist before us with his appeal against
sentence.
[3] In heads of
argument filed in the Pretoria High Court, the appellant raised a
constitutional issue
in limine.
By way of a new ground of
appeal, counsel for the appellant argued that, to the extent that s
14(1)(b) of the Act criminalises
sexual intercourse and other sexual
acts of one person with another where the latter (whether a girl or a
boy) is 12 years or older
and capable of forming an intention
(“wilsvermoënd”), and who participates voluntarily in such
sexual acts, the section
constitutes unfair discrimination on the
grounds of, inter alia, gender and/or sexual orientation in
contravention of s 9(3) of
the Constitution and is accordingly
invalid. In support of this argument, counsel contended that the
South African common law recognises
that a girl of 12 years or older,
with the capacity to form an intention, can legally consent to sexual
intercourse and that if
she does so, her sexual partner is not guilty
of rape. According to counsel, a ‘necessary implication’ of s
9(3) of the Constitution
in this context is that boys of 12 years and
older must have the same capacity to consent to sexual acts.
Moreover, so the argument
continued, to categorise voluntary sexual
intercourse or any other sexual act by a girl or boy of older than 12
years, who has
the capacity to form an intention, as ‘immoral’ or
‘indecent’ (the terms used in s 14(1)(b) of the Act) also
constitutes
unfair discrimination against such girls and boys in that
they are not free to take their own decisions in regard to sexual
activity.
Further, as s 14(1)(b) criminalises the conduct of any
person who engages in voluntary sexual intercourse or any other
voluntary
sexual act with such a girl or a boy, the section must of
necessity constitute indirect discrimination against the former
persons
and is, for that reason also, constitutionally invalid.
[4] Although
these constitutional arguments were trenchantly rejected by the
Pretoria High Court, the appellant persisted with this
ground of
appeal before us and substantially (if not exactly) the same
arguments were repeated in the heads of argument filed on
behalf of
the appellant in this Court. In view hereof, more than two months
prior to the hearing of this appeal, this Court afforded
the Minister
of Justice and Constitutional Development, as the minister of state
concerned with the administration of the Act,
an opportunity to
intervene in the appeal. The attention of the Minister was
specifically drawn to a further question - arising
from the
constitutional issues raised by the appellant – as to whether the
distinction drawn in s 14 of the Act, relating
to the so-called
‘legal age of consent’ for sexual acts between persons of the
opposite sex, on the one hand, and such acts
between persons of the
same sex, on the other, is constitutional. This question was also
brought to the attention of both parties.
Both the parties, as well
as the Minister – if she decided to intervene – were requested to
file heads of argument dealing
with the constitutional validity of s
14 and indicating whether, in their view, evidence may assist this
Court in arriving at a
conclusion. In addition, notice of the
proceedings was given to the
amici curiae
in
Minister of
Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of
Home Affairs
[2005] ZACC 19
;
2006 (1) SA 524
(CC), namely Doctors for Life
International, its legal representative (Mr JJ Smyth QC) in his
personal capacity and the Marriage
Alliance of South Africa, as well
as to the Lesbian and Gay Equality Project. The Minister subsequently
intervened in this appeal
and heads of argument dealing with the
constitutional points were filed on her behalf, as also on behalf of
both parties.
Appeal
against convictions on counts 1-4
[5] According
to the charge sheet, read together with the two sets of further
particulars supplied by the State in terms of
s 87
of the
Criminal
Procedure Act 51 of 1977
, the dates on which and the places where the
relevant different acts in respect of the four charges were allegedly
committed were
as follows: Count 1 – during January to April 1998,
in an Elwierda tour bus at the Eastgate Airport, approximately 7
kilometres
outside Hoedspruit, Mphumalanga; count 2 – during
January to April 1998, in a room at the Casa Da Sol Hotel in
Mphumalanga;
count 3 – also during January to April 1998, in the
appellant’s car in the parking lot of the Corpus Christi Church in
Elardus
Park, Pretoria; count 4 – during October to November 1998,
in the complainant’s bedroom at his family home in Mirage Street,

Elardus Park, Pretoria. As the complainant was born on 29 June 1983,
he was 14 years old at the time of the acts allegedly committed
in
respect of the first three counts and 15 years old in respect of the
act forming the basis of the fourth count. According to
the charge
sheet for each of the four counts, the appellant had indecently
assaulted the complainant by masturbating him and enticing
him to
masturbate the appellant.
[6] It
was common cause that, during 1997, the appellant – a qualified
dentist who had been suspended from practice for three
years
(commencing in 1996) as a result of his conviction in 1991 on four
counts of ‘indecency’ involving children – was employed
by
Elwierda, a tour bus company, as one of its drivers. In approximately
July 1997, the complainant’s mother (Mrs B) met the
appellant while
she was travelling on an evangelical tour, in an Elwierda bus, to
Mozambique. After that, he became close friends
with the family,
often visiting their home. According to the complainant and Mrs B,
the appellant slept over at their home quite
frequently, usually in
the youngest son’s (A’s) room where there were bunkbeds.
[7] The
appellant was generous to the children, and to the complainant in
particular, bringing them sweets and other gifts. The
whole family
was fond of the appellant, as he was of them. At that stage, the
family was experiencing serious financial problems
and the appellant
lent not insubstantial sums of money to both Mr and Mrs B for various
purposes. When he resumed practising as
a dentist in Randfontein in
December 1998, the appellant rendered dental services free of charge
to one of Mrs B’s friends, who
was a single mother with three
dependants. With the knowledge and approval of the parents, he
sometimes took the complainant or
A or both of them on various
outings.
[8] The
complainant testified that the indecent acts to which the appellant
subjected him started at the end of 1997, when the complainant
was 14
years old and in standard six. As far as count 1 is concerned, the
complainant’s evidence was that, some time during the
period
January to April 1998, the appellant had to drive a tour bus very
late one night to Hoedspruit to pick up a tour group at
the Eastgate
Airport. The complainant accompanied him. They arrived at their
destination in the early hours of the morning and,
while they were
waiting for the tour group to arrive, the appellant came to sit next
to the complainant in the bus and once again
started to touch his
private parts on top of his trousers. The appellant then put his hand
under the complainant’s underpants
and masturbated him. He then
pulled open the zip of his own trousers, took out his penis, placed
the complainant’s hand on it
and performed a masturbating action,
with his hand over the complainant’s. At some stage the complainant
took his hand away but
the appellant simply replaced it and the
masturbation continued. This stopped when the tour group arrived and
the appellant then
drove the tour bus as the group was taken on a
short tour through Mpumalanga.
[9] The
events forming the basis of count 2 allegedly happened that same
night. Because of some defect in the tour bus, the appellant
and the
complainant had to spend the night with the tour group at the Casa da
Sol Hotel in Mpumalanga, while waiting for another
bus to be sent.
According to the complainant, he and the appellant had to share a
room with a double bed, where appellant once
again started fondling
the complainant, putting his hand into the complainant’s underpants
and masturbating him. Thereafter,
he placed the complainant’s hand
on his penis, and with his hand over the complainant’s hand,
performed a masturbating action.
This carried on until one of them
ejaculated – according to the complainant, this was how it always
ended.
[10] After
this incident, the appellant gave the complainant money of between
R50 and R200. The gifts of money had in fact started
before the
‘masturbation and everything’ began. In his examination-in-chief,
the complainant made the unsolicited comment,
referring to the mutual
masturbation, that ‘it is a nice feeling, with that I am not going
to quarrel’. Nevertheless, he felt
heartsore and disturbed by what
had happened. He was scared to tell his parents because he did not
know how they would react and
felt that they might be disappointed in
him. His relationship with his parents at that stage was such that
they did not really
talk about sex and like matters, so he kept these
things to himself. He found it much easier to talk to his friends
about such
matters. He stated that he was scared to say no to the
appellant because he (the appellant) might then do something more
serious
to him. The complainant also expressed his belief that the
main reason why he was not able to tell his parents about what was
happening
was the fact that the appellant gave him gifts of money
after these incidents. He enjoyed being spoiled by the appellant, but
this
spoiling also made him feel that he was the guilty party. Under
cross-examination, he conceded that he could have stopped these

incidents at the outset, had he wanted to do so. Although he did not
really know why he had not done so, this had all happened
at a time
when the family was suffering financially and he believed that the
reason why he had kept quiet about it all was the
money with which
the appellant had ‘bribed’ him.
[11] As
regards count 3, the complainant testified that during the period
between January and April 1998, the appellant was teaching
the
complainant to drive at the parking area of the Corpus Christi Church
in Elardus Park. The complainant was sitting in the driver’s
seat
of the appellant’s vehicle, with the appellant on the passenger’s
side, when the latter started to rub the complainant’s
trousers, so
that he got an erection. The appellant then once again put his hand
inside the complainant’s underpants and masturbated
him. There then
followed the usual mutual masturbation, which ended when one of them
ejaculated. They swapped seats and then returned
to the complainant’s
parental home. According to the complainant, after the incident in
the parking area of the church, the mutual
masturbation happened
frequently in the appellant’s dental surgery, and also when they
were going somewhere together. It was
always initiated by the
appellant and, after each incident, the appellant gave money to the
complainant and continued to spoil
him.
[12] In
respect of count 4, the complainant was studying at home for his
end-of-year standard 7 examinations in October or November
1998. The
appellant arrived at the house when only the complainant and the
domestic worker were there. The appellant and the complainant

socialised for a while and then started to play a game of chess in
the complainant’s bedroom. During the game, the appellant
came to
sit next to the complainant, he then put his hand into the
complainant’s pants and masturbated him. Once again the mutual

masturbation ensued until the complainant ejaculated. While this was
happening, the domestic worker was busy with tasks in and
outside the
house.
[13] There
were several other instances of mutual masturbation thereafter which
eventually graduated to full anal penetration on
more than one
occasion. By that stage though, the complainant had already turned
16. In the light of the conclusion that I have
reached on the
constitutional challenge to s14(1)(b) of the Act, those allegations
need not detain us any further.
[14] The
last sexual ‘encounter’ between the two of them occurred,
according to the complainant, in September 2001, when the
appellant
accompanied the complainant and the latter’s brother A to the
Aardklop Festival in Potchefstroom. They spent the whole
day at the
festival, returning to the appellant’s flat in Randfontein, where
they spent the night. It would appear that this
encounter at the
appellant’s flat was the proverbial ‘last straw’ for the
complainant and, according to him, he decided that
he did not want
that to ever happen again. From then on, he deliberately avoided the
appellant, seeing to it that he was not at
home when the appellant
visited or that he went to bed early on the evenings when the
appellant slept over at his home. Under cross-examination,
it was put
to the complainant that, after this ‘final’ incident which had
allegedly occurred in September 2001, the complainant
went out for a
meal with the appellant at least twice during the course of the year
2002. The complainant readily conceded that
they had in fact had a
meal together in that year, but he could not remember another such
occasion. The complainant also acknowledged
that he might have spent
a night at the appellant’s flat some time during 2002, when he went
to meet the appellant’s parents
there. On this occasion, which
might (or might not) have happened in 2002 (the complainant could not
remember the year of the visit),
he slept in the sitting room of the
appellant’s flat, without anything untoward occurring.
[15]
Although the complainant felt unable to tell his parents about what
was happening between the appellant and himself, he did
tell his best
friend, J, in April 1998, about the incidents of mutual masturbation
that had taken place up to that time. He asked
J not to tell his (the
complainant’s) parents because he did not know how they would
react. That much was confirmed by J, who
was also called by the State
as a witness. The complainant also testified that, after he had told
J about what was happening between
himself and the appellant, he also
told approximately seven of his girl friends about it during the
period May 1998 to the end
of 1999, and about another eight of his
girl friends after he had started his studies at the Technikon in
2002. He recalled that,
while he was still at school, he had told J’s
twin sister and a girl called N, and later, one of his Technikon
friends. He could
not remember the names of the other girls whom he
had told about the incidents. He reiterated that he found it much
easier to talk
to his friends about these matters than to his parents
and that, although several of his friends had encouraged him to tell
his
parents, he had not done so because he was scared how they might
react.
[16] The
complainant told no one in his family about the incidents between him
and the appellant before January 2003. The B family
had spent the
December 2002/January 2003 holidays near Wilderness in the Cape. They
then celebrated the New Year by spending New
Year’s Eve and the
first few days of 2003 in Somerset West at the home of Mrs B’s
cousin, H, and his partner of 18 years’
standing. When the family
returned home by car, the complainant stayed on with H and his
partner for a few days, before flying
back to Pretoria on 6 January
2003. On the evening before his departure, he had told H, with whom
he had developed a good and close
relationship, about everything that
had happened between himself and the appellant. He testified that he
had not specifically chosen
this moment to tell them about what he
had experienced - ‘it just happened’ and he had felt ready to
share this with them.
Having told them, he felt much better about it.
He asked them not to tell his parents but, according to the
complainant, they had
ultimately decided to do so in order to prevent
the same thing happening with his younger brother. H, who was also
called as a
State witness, confirmed the essential features of the
appellant’s evidence.
[17]
H had in the meanwhile discussed the matter with his partner and they
had decided that they had no choice but to notify the
complainant’s
parents, as they were concerned about the complainant’s younger
brother. Thus, some three or four days after
the complainant’s
return to Pretoria, H telephoned the complainant’s father and told
him what the complainant had imparted.
Under cross-examination, H
testified that he was somewhat troubled by the father’s reaction.
Although he had expected a major
outburst, the complainant’s
father, although shocked and ‘a bit upset’, had remained quite
calm and had simply said that
he would discuss this with Mrs B.
According to H, he was fully aware of the dangers of HIV and, when
the complainant had told him
that no condoms had been used by the
appellant, he had told the complainant to take proper precautions ‘in
the future’. He
testified that he had requested the complainant’s
parents to report the matter to the police immediately and to take
the complainant
to see a doctor.
[18] Some
while after H had told Mr B what the complainant had conveyed to him,
he (H) telephoned Mrs B to find out how she was.
Mrs B told him that
the appellant was at that moment visiting in their home. As soon as
he heard this, H told her to request the
appellant to leave the
premises at once. He then telephoned the complainant on the latter’s
mobile phone and told him to remove
his younger brother, A, from the
house and to go for a drive. After he had done this, he telephoned
Mrs B again. She then had a
‘major outburst’, becoming quite
hysterical and screaming uncontrollably. H tried to calm her down and
told her that he would
immediately fly up to Pretoria to assist and
support the family. This he then did.
[19] When
H contacted the complainant on the latter’s mobile phone, the
complainant questioned H and heard for the first time
that his
parents knew ‘the whole story’. He then followed H’s
instructions and drove with A to his friend J’s house, leaving
the
appellant behind at the B home. He and A had only been away for about
15 minutes when H again telephoned the complainant on
his mobile
phone and told him to return home at once as his mother needed him.
When he got home, he went into his mother’s bedroom
to find her
lying on her bed and crying uncontrollably. His mother then hugged A
to her and the complainant realised that A had
also been molested by
the appellant. The complainant then also started crying because he
thought that it was all his fault. It
was after this that he decided
to lay charges against the appellant, so as to prevent the same thing
happening to other children.
[20] At
the end of his examination-in-chief, the complainant explained how
his life had been influenced by what had happened between
him and the
appellant. From time to time thereafter, he started to ‘wonder’
about himself (referring, no doubt, to his sexual
orientation). There
were times when he saw a ‘guy’ and said to himself that the ‘guy’
was sexy. The ‘last thing he wanted
to be was gay’ and he had to
fight this struggle taking place inside him. When he went to public
toilets and encountered other
men who were older than he, he felt
very uncomfortable and scared because he did not know which of them
did ‘such things’.
He did not want to be alone in a public toilet
with such a man and hence always went into the cubicle to urinate,
locking the door
behind him.
[21] Mrs
B, the complainant’s mother, who was at that stage working as a
nurse and was frequently on night duty, confirmed in
her testimony
that the appellant had become a close family friend. According to
her, sometimes, if there were other guests in
the house, the
appellant, the complainant and A all slept in A’s bedroom, A and
the appellant each on a bunk bed and the complainant
on the floor.
She testified that the whole family was very fond of the appellant.
Despite what had happened, they still loved him;
indeed she felt
sorry for him. She also confirmed that their financial position was
bad at that time and the appellant often gave
the children gifts that
they could not afford to give them and that he was generous to the
family. She saw nothing sinister in
the fact that he frequently
visited them and slept over at their home and also saw nothing
untoward in him spending time alone
with her children. She could not
understand why her children had not told her about the molestation by
the appellant. According
to Mrs B she knew that, during the course of
2002, the appellant was the accused in a criminal trial involving the
molestation
of a child in his dental surgery. When she asked him
about this, he told her that he was not guilty and that the parents
simply
wanted to make money out of him. Her response was to ask him
not to do anything of the kind to her own children, whereupon he
assured
her that he would not. Little did she know that her children
had already been molested by him. When Mr B was informed by H about

the complainant’s revelations, she and Mr B had decided that,
should the appellant return to their home, Mr B would speak to
him
‘in a Christian manner to sort the matter out.’ However, when A
told her, on the morning of Sunday 19 January 2003, that
the
appellant was coming to visit them that afternoon, she realised that
she could no longer permit him to be in their home. She
called A to
her and, telling him that she would never reproach him, asked him
whether the appellant had ‘messed with him’.
A replied that the
appellant had ‘played with his penis’ and she then realised that
‘everything’ was true.
[22] According
to Mrs B, after the complainant and A had left the house that
afternoon, she had asked the appellant how he could
have molested her
two sons when the whole family loved him and cared about him. The
appellant turned deathly pale and kept repeating
that he was sorry.
She informed him that he must go and that she did not want to see him
ever again. He kept on saying that he
was sorry and then left the
house. She still felt heartsore and did not understand how he could
have done such a thing. She reiterated
that she felt sorry for him.
[23] Mrs
B testified that it was a psychologist who had reported the matter to
the police. Both children had been taken to see this
psychologist
approximately a week after her confrontation with the appellant. They
had two sessions with him. He then said that
they must first ‘get
through the court case’ before continuing with the sessions. After
the boys had testified, both of them
had immediately been taken back
to the psychologist.
[24] After
the complainant’s parents had become aware of what had happened,
the matter was reported to the police and the complainant
was
medically examined by a Dr Winn on 15 February 2003. The complainant
had informed Dr Winn that he had been sodomised by a person
known to
him three times during the year 1999 to 2000. All the findings
flowing from the doctor’s examination of the complainant
showed
signs of anal penetration. During his anal examination of the
complainant, he had found an old abrasion and an old scar
on the skin
surrounding the anus; fissures and cracks along the circumference of
the anus; thickening and folding of the anal orifice;
inversion of
the anal canal and swelling around the rim of the anus. The skin
surrounding the anus was also red and painful to
his touch. All these
symptoms were in his view probably due to repeated anal penetration.
The redness and pain, as well as some
of the other injuries, could
have been caused by chronic constipation, but his findings favoured
penetration of the anus with a
sexual organ.
[25] Under
cross-examination, Dr Winn stated that fissures and cracks which he
had found along the circumference of the anus were
approximately one
to one and half years old. He also stated that the funnelling which
he had found was one of the signs of chronic
anal penetration. He
expressed the view that his findings indicated more than three or
four anal penetrations; all the signs pointed
to ‘habitual’ or
frequent penetration, perhaps on a monthly or even on a daily basis.
He was however, unable to say definitively
that his findings
indicated chronic anal penetration as there could possibly have been
another cause for the symptoms found, such
as internal or external
haemorrhoids. However, the combination of all his findings pointed in
the direction of repeated anal penetration,
certainly more than three
incidents thereof.
[26] The
appellant testified in his own defence and denied all the allegations
of wrongdoing against him. He stated that he was
diagnosed as having
Romano Ward syndrome when he was in standard one at school. This
syndrome is a genetic deviation of the main
nerve of the heart,
creating the risk of instant death in the event of any emotional
arousal (such as anger or excitement) which
makes the heart beat
faster. He did reasonably well at school and then went on to obtain
his dental degree at the University of
Pretoria. In May 1980, he
began practising as a dentist in Balfour in the Eastern Transvaal.
However, in 1990, five charges of
indecent assault were laid against
him. One was withdrawn, but he pleaded guilty to the other four
charges and was convicted on
these charges in 1991. On two of the
charges, taken together, he was sentenced to three years’
imprisonment, suspended for five
years on certain conditions, one of
which was that he had to undergo psychotherapeutic treatment with a
registered psychologist
for a period of 18 months. On the other two
charges, also taken together, he was sentenced to 2000 hours of
periodical imprisonment.
[27] In
consequence of these convictions, the appellant was suspended from
practising as a dentist in 1993. He appealed against
the suspension,
but the appeal failed and the suspension took effect in May 1996.
The appellant then started working for the Elwierda
tour bus company
as a bus driver. It was on one of the bus tours that he met Mrs B in
1997. He thereafter met the rest of the B
family and quickly became a
close family friend. According to the appellant, shortly after he had
met the B family, he told the
oldest son, F, then in matric, about
his previous convictions. He thereafter told Mrs B about this as
well. They were supportive
and did not reject him and he remained
friends with the whole family. When cross-examined about how it had
come about that he told
F about his previous convictions, the
appellant replied that he had ‘simply felt that the family should
know’.
[28] According
to the appellant, he had never slept over at the B family home in
1997. He had terminated his employment at Elwierda
in January 1998
and had gone straight to his parents’ home in Warden, staying with
them until the end of November 1998. He testified
that he did not
visit the B family home during 1998, apart from one brief visit in
August or September, when he was in Pretoria
for a sitting of the
medical council. He had definitely not visited the B family on other
occasions in 1998, as the engine of his
motor vehicle packed up at
the beginning of January of that year and he did not have transport.
[29] He
started practising as a dentist again, in Randfontein, on 1 December
1998 and in February 1999 moved into a flat close to
his practice. He
moved to another flat in Mimosa Street in Randfontein at the
beginning of May 1999, which was where the B boys
had slept over upon
returning from their outing with him to the Aardklop festival in
Potchefstroom.
[30] The
appellant testified further that he had started visiting the B family
again from about February 1999. He slept over at
the B home in
Pretoria only four times during the course of 1999, as far as he
could remember, and twice during the course of 2000
(in April and in
May). When he stayed the night at the B home, he usually slept in A’s
bedroom, where there were bunkbeds, and
sometimes A slept in the room
with him. According to the appellant, Mr and Mrs B had borrowed
relatively large sums of money from
him, the first such loan (in an
amount of R2500) being made to Mr B in 1997, allegedly for a mortgage
bond repayment and policies
which had to be paid. Mr B had repaid
this loan after the appellant started practising again. Mr B had
asked the appellant for
a second loan in 1997, but the appellant
could not afford it. Both F, as well Mrs B, had also borrowed money
from the appellant.
The B’s daughter, H, had twice written to him
asking him for a ‘donation’, once for her glass work and once for
a pair of
shoes. He had also purchased an outfit for her. A had asked
him for money to go on a cricket tour, as well as for ‘presents’

which he (the appellant) could not afford, such as a tennis racket
and a mobile telephone. Under cross-examination, the appellant
stated
that he had at no stage felt that he was being abused, and that the
requests for money and for free dental services had
not influenced
his friendship with the family.
[31] The
appellant confirmed that he had received psychological treatment
after his 1991 convictions on charges of child molestation,
and that
this was a condition of suspension of his sentence because he had
tendencies towards paedophilia. Under cross-examination,
the
appellant alleged that this psychological treatment had ‘helped’
him. When asked why, if that were so, he was convicted
on a similar
charge in 2002, the appellant’s response was that he had pleaded
not guilty in the ‘second case’.
[32] According
to the appellant, the complainant had told him that he had had a
sexual relationship with one of his school friends
(a boy) for
approximately four years. As far as he could remember, the
complainant had made this revelation to him in the first
quarter of
2000. In response to a question posed by counsel for the State, the
appellant said that his attitude to sexual matters
was on the
conservative side and that he had been somewhat shocked and taken
aback when the complainant had told him of this relationship.
His
reaction was to tell the complainant that it was wrong and that he
must never do such a thing again. He however could not remember
the
precise circumstances of this conversation between himself and the
complainant, although he knew that it had taken place at
the B home.
[33] Regarding
the confrontation between Mrs B and himself in January 2003, the
appellant testified that he was visiting the B family
on a Sunday
afternoon after A had telephoned him that morning. After the
complainant and A left, telling him that they were going
somewhere by
car, Mrs B entered the lounge where the appellant was reading the
newspaper and asked him to leave their home. She
alleged that the
appellant had molested the complainant and A. He left the house.
[34] Under
cross-examination, he testified that he had felt ‘somewhat shocked’
when Mrs B had made these accusations against
him. He had not,
however, then told her about the complainant’s alleged homosexual
relationship or about an incident that had
allegedly happened in the
first quarter of 2002 – about which he had testified in his
examination-in-chief – during which he
(the appellant) had woken up
to find A trying to open the zip of his trousers. According to the
appellant, A had accompanied him
to visit the T family and, at the T
family home, the appellant had taken two painkillers because of a
headache and had gone to
lie down in one of the bedrooms. When he
woke up, A was tampering with the zip of his trousers. He (the
appellant) took A to task
about this, told him that he must never do
it again and took him back home.
[35] The
reason given by the appellant for his failure to mention either of
these things to Mrs B when she accused him of having
molested her
sons, was that he did not want to get into an argument with her,
impliedly because of his medical condition. The appellant
conceded
that, in view of his previous convictions, he had to be very careful
in his relationships with children and that if his
version of the
boys’ conduct, particularly A’s behaviour, were true, this could
have placed him in a very difficult and dangerous
position. He
reiterated, however, that he had rebuked A for his behaviour and that
the latter had never again behaved in such a
manner. He insisted that
the incidents of sexual activity about which the complainant and A
had testified had never happened and
that both boys had been lying to
the court. He had been very good to the B family and had no idea why
they would lay such charges
against him.
[36] The
appellant admitted that, before this confrontation between himself
and Mrs B in 2003, he had again been charged with a
sexual offence,
committed in Randfontein, the allegation being that he had indecently
assaulted a minor child on 2 November 2000.
He was convicted on this
charge and sentenced on 21 November 2002. According to the appellant,
he had told Mrs B about the pending
matter in November 2000, long
before it had been finalised. He had pleaded not guilty to the
charge, but had nevertheless been
convicted and sentenced to a fine
of R20 000 or five years’ imprisonment, plus a further five year’s
imprisonment suspended
for five years on certain conditions,
including community service. The appellant testified that there had
been no change in his
relationship with Mrs B or in her attitude to
him as a result of this criminal trial and that he had informed her
of the outcome
of the trial in November 2002.
[37]
During his examination–in-chief, the appellant admitted that he
had been in the complainant’s company on the various different

occasions during which the alleged sexual activity referred to in
counts 1 to 4 had actually occurred, although not all during
the time
periods referred to by the complainant. So, for example, in respect
of the first two counts, the appellant testified that,
at the end of
December 1997, after Christmas, he had indeed been accompanied by the
complainant on a late night bus journey to
the Eastgate Airport to
pick up an overseas tour group. Mr B was allegedly worried about the
appellant’s being able to stay awake
should he undertake the
late-night drive alone, and had therefore suggested that the
complainant accompany him to keep him awake.
Apart from the incident
of mutual masturbation in the bus while they were waiting for the
tour group to arrive, about which the
complainant had testified, and
which the appellant denied, the appellant’s account of the journey
and what had happened the following
day largely tallied with the
complainant’s version.
[38] The
appellant agreed that, because of a defect with the bus, he and the
appellant unexpectedly had to spend the night at the
Casa da Sol
Hotel in Mphumalanga while they were waiting for a new bus to be sent
out by the tour company. According to the appellant,
however, the
hotel room which he and the complainant had to share did not contain
a double bed, but only two single beds and a
sofa which could be
converted into a bed. He, the complainant and another bus driver
employed by Elwierda, by the name of Bernard
Docco, shared the room,
he and the complainant each sleeping on a single bed and Bernard on
the sofa-bed. He alleged that he had
made enquiries about the
whereabouts of Mr Docco, but that he been informed that Mr Docco was
now in the United States of America.
The appellant also alleged that
the person who had driven the replacement bus to the hotel, arriving
in the early hours of the
morning, had also used the bathroom
facilities in the hotel bedroom in which he, the complainant and Mr
Docco were sleeping. He
could not, however, remember whether this
person had also slept in the room. He denied that there had been any
mutual masturbation
between himself and the appellant that night.
[39] As
regards the third count, the appellant agreed that he had started to
teach the complainant to drive at the latter’s request,
and that
the complainant had practised driving with him once or twice in the
beginning of December 1997. This had taken place in
the parking area
of the Corpus Christi Church, as the complainant had testified.
However, he and the complainant had never been
alone on any such
occasion; on the contrary, A and, as far as he could remember, also
the complainant’s sister (H) had been with
them and no mutual
masturbation had taken place between him and the complainant in the
car. The driving lessons could not have
taken place in the period
from January to April 1998 – as the complainant had testified –
as he (the appellant) had resigned
from Elwierda in early January
1998 and had immediately gone to his parental home in Warden, where
he had stayed until November
1998. He had helped out at Elwierda on a
free-lance basis from mid-September to late October 1998 and had
certainly not visited
the complainant’s family in October or
November of that year. He testified that he could not therefore, have
visited the complainant
at the latter’s home during the
complainant’s study ‘leave’ in October or November 1998 and
indulged in mutual masturbation
with the complainant in the
complainant’s bedroom as the latter had testified.
[40] The
appellant testified that he had indeed taken the complainant and A to
the Aardklop festival in Potchefstroom in September
or early October
2001. They had spent a day at the festival and, on their return to
Randfontein, the boys had spent the night at
his apartment, sleeping
in his spare room while he spent the night in his own bedroom. The
appellant denied the complainant’s
allegations that, during the
period January to March 2001, he (the appellant) had engaged in
sessions of mutual masturbation with
the complainant or that he had
anally penetrated the complainant on the diverse occasions testified
to by the latter. Here again,
in the light of my approach to the
constitutional challenge and its impact upon the remaining unlawful
acts allegedly perpetrated
by the appellant after the complainant had
turned 16, and my assessment of the veracity of the appellant’s
version, it is not
necessary to deal in any greater detail with rest
of the appellant’s evidence.
Assessment
of evidence
[41] Counsel
for the appellant contended that neither the regional magistrate, nor
the high court, attached sufficient weight to
the contradictions and
improbabilities in, and the unreliable nature of certain aspects of,
the evidence of the complaint and other
State witnesses. Moreover, it
was submitted, both the regional magistrate and the high court erred
by not finding that there was
insufficient corroboration of the
complainant’s evidence in respect of the alleged sexual incidents.
According to counsel, the
evidence of the appellant should not have
been rejected as not being reasonably possibly true. Finally, counsel
repeated – and
elaborated upon in considerable detail – the
argument which he had advanced before the regional magistrate and the
High Court,
namely that the complainant was conspiring with the rest
of his family to incriminate the appellant falsely, in order to
conceal
from the outside world his homosexual orientation and,
possibly, the identity of his homosexual partner.
[42] I
do not find any of these arguments convincing. As Hartzenberg J
pointed in his judgment, there were indeed contradictions
in the
complainant’s evidence and that of some of the other State
witnesses. On the whole, however, the complainant remained

consistent although he was testifying about events some of which
occurred more than five years before the commencement of the trial.

It is true that the complainant’s evidence that the appellant had
penetrated him anally only three times and that he had never
been
involved in a homosexual relationship with any other person, cannot
really be reconciled with Dr Winn’s evidence that all
the findings
which emerged from his anal examination of the complainant pointed to
repeated (‘chronic’) anal penetration. However,
it was also clear
from the complainant’s evidence that, in his view, considerable
stigma attached to being inclined to same-sex
sexual activity. There
are many possible reasons why the complainant might not have wanted
to disclose the fact of a possible homosexual
relationship with
another person occurring at the same time as the occurrence of the
sexual acts between himself and the appellant,
or of such a
homosexual relationship occurring after these events. In this regard,
the reasoning of Hartzenberg J in the High Court
is compelling-
‘
That
superficially speaking his [the complainant’s] evidence and that of
Dr Winn cannot be reconciled, is clear. The magistrate
was clearly
aware of it because he pointed out that the medical examination was
done eighteen months after the last incident of
anal penetration by
the appellant. There are a number of possibilities. He may have had a
homosexual relationship with someone
else after his last encounter
with the appellant. He may even have had such a relationship during
the same time although one would
have expected his family to have
been aware of it. He may have had more such incidents with the
appellant, but if I understand
the evidence of Dr Louw correctly, he
may have subconsciously dissociated himself from them or Dr Winn may
have exaggerated his
clinical findings.’
[43] It
is true that the complainant’s evidence was not above criticism.
However, the regional magistrate was clearly aware of
the areas of
criticism and nevertheless accepted his evidence. This evidence was
corroborated in number of important respects.
In particular, the
appellant’s conduct when initially confronted by Mrs B, when
(according to her evidence) the appellant went
deathly pale and
repeatedly said that he was sorry, is reconcilable only with the
truth of the complainant’s evidence and not
with the appellant’s
evidence. It must also be remembered that most of the occasions on
which the sexual incidents between the
complainant and the appellant
allegedly happened, are common cause. The appellant himself conceded
that he and the complainant
were together on those occasions. It was
common cause that the appellant was very friendly with all the B
children and, in particular,
with the complainant, and that he took
the latter on outings and spoiled him with gifts.
[44] On
the other hand, there are many aspects of the appellant’s evidence
which to my mind, are most unconvincing. So, for example,
the
appellant’s version of how he had reacted when initially confronted
by Mrs B on January 2003, namely that he had simply said
that he was
not aware of the events in question and that they had not happened is
extremely unlikely. Not only did the appellant,
on his version of
events, not ask Mrs B any questions about the allegations against him
or express any shock or outrage about these
allegations, but he also
did not tell her that A had on one occasion ‘fiddled’ with the
zip of his trousers and that the complainant
had informed him of a
four-year long homosexual relationship with a school friend,
involving anal sex. His ostensible reason for
not doing any of these
things was that he did not want to get into a conflict with her. So
he simply left the house as she had
requested him to do. I find this
very difficult to believe.
[45] The
‘conspiracy theory’ advanced by counsel for the appellant does
not ring true. In the words of Hartzenberg J:
‘
The
argument on behalf of the appellant entails that the complainant
falsely
told the uncle [H] about the appellant’s conduct,
and on top of it asked the uncle not to inform his parents, in the
hope that
he would tell them. According to the argument he must have
done that to protect someone who was anyway not suspected of anything

by anybody. It is much more likely that he told the uncle the truth.
Moreover, the whole B family, except possibly A, was clearly

sympathetic towards the appellant and did not create the impression
of trying to have an innocent man convicted.’
[46] Faced
with the competing versions of the complainant and the appellant, the
regional magistrate, and thereafter the High Court,
concluded that
the appellant’s version, when viewed against the totality of the
evidence adduced, as well as against the inherent
probabilities, was
false. Each of these courts correctly adopted a holistic approach to
the evidence and I am not persuaded that
either court misdirected
itself on the evidence before it, nor that its conclusion was wrong.
[47] It
follows from the above that the appellant’s appeal against his
convictions on the first four counts must fail.
Application
in terms of
s 322(1)(b)
of the
Criminal Procedure Act 51 of 1977
[48] Before
this Court, the respondent applied for an amendment, in terms of
s 322(1)(b)
of the
Criminal Procedure Act 51 of 1977
, of the
appellant’s convictions on ten counts of contravening
s 14(1)(b)
of
Act 23 of 1957 to 10 convictions of indecent assault and also, should
this application be successful, for an increase in the
sentences
imposed on the appellant by the regional court and confirmed by the
high court. The gist of the argument advanced by
counsel for the
state was that, right from the start, the power relationship between
the appellant and the complainant was totally
unequal because of the
complainant’s age in relation to that of the appellant (who was
nearly 28 years older than the complainant)
and the relationship of
friendship and trust that existed between the appellant and the B
family. With reference to each count,
counsel attempted to illustrate
that, although the complainant may have appeared to have consented to
the sexual act in question,
this was not voluntary consent. Counsel
relied in this regard on the evidence of the clinical psychologist
who had treated both
the complainant and A after Mr and Mrs B had
become aware of what had happened. The psychologist testified that a
child who becomes
sexually involved with an adult in this manner is
traumatised and, from the outset, is in the position of a victim. As
such, the
child is paralysed and one of the common reactions is that
the child ‘disassociates’ and places an emotional distance
between
himself or herself and the adult. Where the adult follows a
pattern of ‘spoiling’ the child by, for example, taking the child

on outings and giving the child presents and money, there is a
gradual process of conditioning and manipulation.
[49] The
problem we have in this case is that it is clear from the record that
the regional magistrate adopted a
prima facie
view,
at
an early stage of the trial, that the complainant had been a willing
participant in all the various sexual interludes between
him and the
appellant, to which view the prosecutor appears to have assented.
Thus, during the examination-in-chief of the complainant,
the
following exchanges took place between the regional magistrate and
the complainant:
‘
Die
lank en die kort van die storie is jy het basies altyd die goed
toegelaat en saamgespeel nie waar nie? – ‘Ek het dit toegelaat

maar . . .
‘
En
jy het ook saamgespeel want jy het ook vir hom gemasturbeer as dit
nodig is? – Later ja maar dit was altyd ook net eerste van
sy kant
af ek het . . . nooit begin nie.’
‘
En as ek jou reg
verstaan het jy op geen stadium vir hom gesê wat blyk dat jy
dit nie wil doen nie?’ – ‘Ja ek het dit
nooit vir hom gesê
nie.’
After
the examination-in-chief of the complainant had been completed, the
regional magistrate remarked:
‘
Op
die stadium soos ek die omstandighede nou lees tensy ek anders
oortuig kan word, wil dit vir my voorkom of die seun basies
saamgespeel het en toegestem het.’
[50] On
appeal to the Pretoria High Court, Hartzenberg J commented as follows
on the attitude adopted by the regional magistrate
in this regard:
‘
In
fairness to the magistrate the answer to the argument [that the
magistrate was wrong not to have found the appellant guilty of

indecent assault on the complainant] is that the incidents occurred
over a period of four years and that the complainant was an

intelligent and well-developed lad. The appellant certainly was
justified to think that the complainant was a willing participant.

That was exactly the attitude of the magistrate expressed at an early
stage of the trial. In the result this question was not really

investigated. There is therefore no foundation upon the evidence, to
find that the magistrate was wrong and that the appellant
was guilty
of indecent assault.’
[51] Before
us, counsel for the respondent relied on
R v
Taylor
1927 CPD 16
as support for his
argument that, in a case of indecent assault, the
onus
of proving consent rests upon the accused. This is clearly not
correct, as was pointed out by Munnik J in
S v
D
1963 (3) SA 263
(EC) at 266B-D:
‘
Although
absence of consent is not part of the definition of the crime of
[indecent] assault as is the case in rape, the definition
as quoted
in G
ardener & Lansdown
includes an averment of
“unlawfulness”. The State must, therefore, prove that the act
complained of was unlawful . . .
Since
the act complained in the present case was not
malum in se
and
is only unlawful because of the complainant’s lack of consent,
prove of unlawfulness necessarily involved proof of absence
of
consent. It seems to me therefore that the
onus
of proving
absence of consent rested upon the State.’
(See
also
S v M
2006 (1) SA
135
(SCA) paras 68 and 284-285; and generally JRL Milton
South
African Criminal Law and Procedure
Vol II
Common-law Crimes
3 ed
(1996) p 476.)
[52] It
is therefore clear that, in this case, the
onus
rested on the State to prove absence of consent by adducing
sufficient evidence to negative the reasonable possibility that the

complainant consented to the sexual acts in question. From the
evidence as a whole, I agree with the regional magistrate and the

High Court that the State did not discharge its
onus
of proof in this regard.
[53] Although
it may perhaps be unfortunate that, because of the
prima
facie
view expressed by the magistrate early
in the trial, the question of consent was not really investigated,
this does not affect
my conclusion. As was pointed out by Nugent JA
in
S v M,
supra, para
277:
‘
The
process of examination and cross-examination in a court of law is on
occasions a blunt instrument for revealing the truth, and
that is
particularly so where, as in this case, the evidence concerns matters
that might be emotionally and psychologically complex
and nuanced.
But then it is common for the full truth not to emerge in the course
of a criminal trial, which has the limited function
of determining
whether there is sufficient and adequate evidence to establish beyond
reasonable doubt that the accused person committed
an offence. In the
absence of such proof in relation to each element of the offence the
accused person is entitled to be acquitted
albeit that the full truth
might not have emerged. That applies no matter the nature of the
offence.’
Constitutional
validity of s 14(1)(b) of Act 23 of 1957
[54] I
turn now to deal with the constitutional challenge to s 14(1)(b) of
the Act. The relevant provisions of s 14 (headed ‘Sexual
offences
with youths’), read as follows –
(1)
Any male person who –
(a) has
or attempts to have unlawful carnal intercourse with a girl under the
age of 16 years; or
(b) commits
or attempts to commit with such a girl or with a boy under the age
of 19 years an immoral or indecent act; or
(c) solicits
or entices such a girl or boy to the commission of an immoral or
indecent act,
shall
be guilty of an offence.
(2)
. . .
(3)
Any female who –
(a) has
or attempts to have unlawful carnal intercourse with a boy under the
age of 16 years; or
(b) commits
or attempts to commit with such a boy or with a girl under the age of
19 years an immoral or indecent act; or
(c) solicits
or entices such a boy or girl to the commission of an immoral or
indecent act;
shall
be guilty of an offence.’
‘
Unlawful
carnal intercourse’ is defined in s 1 of the Act as meaning ‘carnal
intercourse otherwise than between husband and
wife’.
The
prescribed penalty for an offence referred to in ss 14(1) or 14(3) is
imprisonment for a period not exceeding 6 months, with
or without a
fine not exceeding R12 000 in addition to such imprisonment (s 22(f)
of the Act).
[55] It
may be noted that, in terms of
s 68(2)
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
, read with the
Schedule to such Act, the whole of s 14 of the Sexual Offences Act is
repealed. Moreover, in terms of s 68(1)(a),
‘[t]he common law
relating to - (a) the irrebuttable presumption that a female person
under the age of 12 years is incapable
of consenting to sexual
intercourse’ is also repealed. With the exception of Chapters 5 and
6 thereof, Act 32 of 2007 (the 2007
Act) came into operation on 16
December 2007 (see s 72(1)).
[56] Part
1 of Chapter 3 of the 2007 Act, headed ‘Consensual sexual acts with
certain children’ replaces the provisions of s
14 of the Sexual
Offences Act of 1957. Part 1 comprises ss 15 and 16, which sections
read as follows:
‘
Acts
of consensual sexual penetration with certain children (statutory
rape)
15
(1)
A person (“A”) who commits an act of sexual penetration with a
child (“B”) 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.
(2)(a)
The institution of a prosecution for an offence referred to in
subsection (1) must be authorised in writing by the National

Director of Public Prosecutions if both A and B were children at the
time of the alleged commission of the offence: Provided that,
in the
event that the National Director of Public Prosecutions authorises
the institution of a prosecution, both A and B must
be charged with
contravening subsection (1).
(b) The National
Director of Public Prosecutions may not delegate his or her power to
decide whether a prosecution in terms of
this section should be
instituted or not.
Acts
of consensual sexual violation with certain children (statutory
sexual assault)
16
(1) A person (“A”) who commits an act of sexual violation
with a child (“B”) 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 violation with a child.
(2)(a)
The institution of a prosecution for an offence referred to in
subsection (1) must be authorised in writing by the relevant

Director of Public Prosecutions if both A and B were children at the
time of the alleged commission of the offence: Provided that,
in
the event that the Director of Public Prosecutions concerned
authorises the institution of a prosecution, both A and B must
be
charged with contravening subsection (1).
(b)
The Director of Public Prosecutions concerned may not delegate his or
her power to decide whether a prosecution in terms of
this section
should be instituted or not.’
In
terms of s 1(1) of the 2007 Act, ‘child’ means –
‘
(a)
a person under the age of 18 years; or
(b)
with reference to sections 15 and 16, a person 12 years or older
but under the age of 16 years.
’
(Emphasis added)
The
definitions of ‘sexual penetration’ and ‘sexual violation’ in
s 1(1) of the 2007 Act are very detailed and it is not
necessary, for
the purposes of this case, to reproduce them. Suffice it to say that
‘sexual penetration’ includes both vaginal
and anal penetration
by, inter alia, the male genital organ, while ‘sexual violation’
includes all the other ‘immoral’
or ‘indecent’ acts which the
appellant is alleged to have committed with the complainant in this
case.
I
will return to the relevance of these provisions of the 2007 Act
later.
[57] The
constitutional arguments advanced by counsel for the appellant can be
disposed of briefly. While it may be true that the
cognitive
development of a boy or a girl of the age of 12 years may in certain
cases be such that the child might be regarded as
competent to make
rational and informed decisions concerning his or her sexual activity
with other persons, this does not mean
that the legislature
necessarily
acted unconstitutionally by setting, in s 14 of
the 1957 Act, what counsel dubs an ‘arbitrary age of (legal)
consent’ above
the age of 12 years for all children. (Indeed,
counsel conceded that the ‘unisex’ age limit of 12 years
championed by him is
also arbitrary, as also is the legislative
setting of most age limits, such as the age of 18 years as that at
which a person is
eligible to vote or to obtain a driver’s licence,
for example.)
[58] It
must be remembered that the State is both constitutionally and
internationally obliged to protect its children from all
forms of
abuse. Section 28(1)(d)
of
the Constitution guarantees the right of every child ‘to be
protected from maltreatment, neglect, abuse or degradation,’
while
s 28(2) provides that ‘a child’s best interests are of paramount
importance in every matter concerning the child’.
[59]
In relation to sexual exploitation and abuse of children, article 34
of the United Nations Convention on the Rights of the
Child (1989),
which South Africa ratified on 16 June 1995, is of particular
importance. It reads as follows:
‘
States
Parties undertake to protect the child from all forms of sexual
exploitation and sexual abuse. For these purposes, States
Parties
shall in particular take all appropriate national, bilateral and
multilateral measures to prevent;
(a) The
inducement or coercion of a child to engage in any unlawful sexual
activity;
(b) The
exploitative of use of children in prostitution or other unlawful
sexual practices;
(c) The
exploitive use of children in pornographic performances and
materials.’
The
content of this prohibition on the sexual exploitation and sexual
abuse of children is substantially duplicated in article 17
of the
African Charter on the Rights and Welfare of the Child (1990),
ratified by South Africa on 7 January 2000.
[60] These
constitutional and international obligations have been incorporated
in the
Children’s Act 38 of 2005
, certain sections of which came
into operation on 1 July 2007. Two of the sections already in
operation echo the abovementioned
provisions of the Constitution and
of the international instruments referred to. So,
s 9
of the
Children’s Act provides
that ‘in all matters concerning the care,
protection and well-being of a child the standard that the child’s
best interest
is of paramount importance must be applied.’ Section
7 of the Act gives further content and scope to the ‘best interests
of
the child standard’. Particularly important in the present
context are paragraphs (h) and (l) of s 7(1) in terms of which –
‘
(1)
Whenever a provision of this Act requires the best interest of the
child’s standard to be applied, the following factors must
be taken
into consideration where relevant, namely –
.
. .
(h)
the child’s physical and emotional security and his or her
intellectual, emotional, social and cultural development;
(l) the need to
protect the child from any physical or psychological harm that may be
caused by –
(i)
subjecting the child to maltreatment, abuse, neglect, exploitation or
degradation or exposing the child to violence or exploitation
or
other harmful behaviour; or
(ii)
exposing the child to maltreatment, abuse, degradation,
ill-treatment, violence or harmful behaviour towards another person’.
[61] Counsel
for the appellant also contended that, by way of international
comparison, there are ‘many examples’ of European
countries which
set lower age limits for legal consent, to both same-sex and
heterosexual sexual acts, than those stipulated in
s 14(1)(b) of the
Act. He also pointed out that there are ‘many examples’ of
European countries which have eliminated any previous
distinction
that existed in such countries between same-sex and heterosexual
legal ages of consent. While the latter contention
is certainly true
of both European countries and other countries in the world, the
former contention is not entirely correct. As
far as I have been able
to ascertain, there are very few countries where the legal age of
consent for heterosexual sexual activity
is lower than 14 years,
while by far the majority of countries set the legal age of consent
in this regard at 15 or 16 years, or
even older. The age of consent
for sexual acts is uniform for homosexuals and heterosexuals in the
majority of countries outside
South Africa. It would appear that most
countries have set this uniform age at 16 years, whilst there are
some who have set it
at 18 years and an isolated few at between 13
and 15 years.
1
[62] There
is a world-wide and growing awareness of the particular vulnerability
of children and of the fact that child abuse, including
sexual
exploitation of children, is a serious and ever-escalating problem.
In South Africa, unfortunately, the extent of this problem
is truly
appalling. Some of the (alarming) statistics and of the factors that
contribute to and exacerbate this problem have been
highlighted by
the South African Law Reform Commission.
2
[63] To
my mind, it is clear that the establishment of a legal age of consent
to sexual activities – a chronological age which
is a line
separating ‘valid’ and ‘invalid’ consent – is perfectly in
line with South Africa’s constitutional and international

obligations. The State has a duty to protect children against sexual
exploitation and the consequences thereof where such children
have
not reached an age at which, in the majority of cases, the child in
question will have the requisite cognitive development
and
intellectual maturity to fully understand and appreciate the nature
and consequences of sexual activities and to be able to
give an
informed consent to such activities. I therefore do not accept the
argument that s 14(1)(b) of the Sexual Offences
Act is
unconstitutional in that it sets the general legal age of consent by
either boys or girls to sexual intercourse and other
sexual
activities at higher than 12 years, even though there may be
individual cases where the boy or girl in question might be
capable
of forming an intention and participating voluntarily in such sexual
acts.
[64] This
brings me to the further constitutional question which this Court
specifically drew to the attention of the parties and
of the Minister
before the hearing, namely whether the distinction drawn in s 14 of
the Act between heterosexual and same-sex sexual
activities by
setting the legal age of consent at 16 and 19 years, respectively, is
inconsistent with the Constitution. On the
face of it, the
same-sex/heterosexual legal age of consent distinction drawn in s 14
of the Act does unfairly discriminate against
persons on the grounds
of their sexual orientation, even when viewed in the light of the
State’s constitutional and international
obligations to protect
young people against, inter alia, sexual exploitation.
[65]
It
was for this reason that we
invited both parties and the Minister to address us on the
constitutional question and to indicate whether
evidence may assist
this court in arriving at a conclusion. So too, notice of the
proceedings was given to Doctors for Life International,
its legal
representative in his personal capacity, the Marriage Alliance of
South Africa and the Lesbian and Gay Equality Project.
[66] None
of the non-governmental organisations who were notified of this
appeal applied to intervene as
amicus curiae
. Moreover,
counsel for the appellant, for the respondent and for the Minister
all agreed that this distinction
does
constitute
discrimination on the grounds of sexual orientation and/or age in
terms of s 9(3) of the Constitution, which discrimination
is in terms
of s 9(5) deemed to be unfair unless the contrary is established.
Counsel for the respondent expressed one qualification,
to the effect
that any unconstitutionality flowing from the distinction between
same-sex and heterosexual acts in s 14 of the Act
should be ‘cured’
by raising the age of consent to heterosexual acts from 16 years to
19 years and thus eliminating the distinction,
or by setting the
legal age of consent for both same-sex and heterosexual acts at the
age of 18 years (the new age of majority
as from 1 July 2007 in terms
of
s 7
of the
Children’s Act 38 of 2005
). This would, however,
create a criminal offence which did not hitherto exist, in a
situation where a Parliamentary choice of a
uniform age of 16 years
has already been made in the 2007 Act. In the alternative, counsel
contended that s 14(1)(b) of the 1957
Act should remain unchanged so
as not to diminish the protection of children in respect of the
period prior to the promulgation
of the 2007 Act.
[67] It
is clear that the broader governmental purpose underlying s 14 of the
1957 Act was the legitimate one of protecting children
against
potentially exploitative sexual conduct, a purpose in line with s 28
of the Constitution. However, in the 14 years since
the advent of a
constitutional democracy in this country in 1994, South African
courts, including the Constitutional Court, have
repeatedly
recognised that gays and lesbians are in ‘certain respects in a
uniquely vulnerable position as far as legal protection
and the
exercise of political power are concerned’ (see Edwin Cameron
‘Sexual Orientation and the Constitution: A Test Case
for Human
Rights’
(1993) 110
SALJ
450
at 456). To be faithful to the
guarantees contained in the Bill of rights, however ‘[s]exual
orientation is – or should be
– a matter of indifference morally
and constitutionally. There is thus no basis which can be
countenanced before the law for
treating homosexual men and woman
differently’ (per Ackermann J in
National Coalition for Gay &
Lesbian Equality v Minister of Justice
1999 (1) SA 6
(CC) para
25).
[68] As
pointed out above, no justification in terms of s 36(1) of the
Constitution was proffered by any of the parties or relevant

non-governmental organisations for maintaining the age differential
in s 14 of the Act, which age differential on the face of it

discriminates unfairly on the grounds of sexual orientation. On the
contrary, as already pointed out, the representative of the
Minister
responsible for the administration of the Act effectively conceded
that there
is
no such justification. On what we have before
us, this concession appears to be correct.
[69] Here
at home, the legislature would similarly appear to have come to the
same conclusion that there is no justification for
the age
differentiation in s 14 of the Sexual Offences Act of 1957. This
section has been repealed with effect from 16 December
2007 and
replaced by ss 15 and 16 of the 2007 Act, which sections set a
uniform age of consent of 16 years for both same-sex and
heterosexual
sexual acts (see para 8 above). The promulgation of the 2007 Act was
the culmination of a lengthy process of research
and consultation by
the South African Law Reform Commission, which process commenced in
1996. The initial investigation concerned
only sexual offences by and
against children and, in May 1997, an Issue Paper on
Sexual
Offences against Children
was published for general information
and comment. Hereafter, the scope of the investigation was expanded
to include sexual offences
against adults and a general overhaul of
the criminal justice system in relation to sexual offences.
Parliament has thus already
spoken by making an unequivocal choice of
a uniform age of consent – a choice made after years of research,
consultation and
public debate. Parliament opted to achieve the
legitimate governmental purpose of protecting children in a manner
that did not
at the same time discriminate against homosexual and gay
persons. In my view, it would take a great deal to convince any court
that this choice is constitutionally invalid. This, in turn, lends
much weight to my conclusion that ss 14(1) and 14(3) of the 1957
Act
are indeed constitutionally invalid to the extent that these sections
distinguish between same-sex and heterosexual sexual
acts by setting
different legal ages of consent to such acts. It follows that, in
terms of s 172(1)(a) of the Constitution, we
must declare these
sections to be invalid to the extent of their inconsistency with the
Constitution.
The
appropriate remedy
[70] In
terms of s 172(1)(b) of the Constitution, a court which has declared
a statutory provision to be unconstitutional and
hence invalid may
make any order that is just and equitable, including ‘an order
suspending the declaration of invalidity for
any period and on any
conditions, to allow the competent authority to correct the defect.’
[71] In
a case such as the present, where a statutory provision creating a
criminal offence is declared to be constitutionally invalid,
the
‘general principle’ that ‘an order of invalidity should have no
effect on cases which have been finalised prior to the
date of the
order of invalidity’ is particularly important (see
S
v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC) para 32). Furthermore, the order must be
formulated in such a way that the interests of good government are
properly taken
into account. In the words of Ackermann J in
National
Coalition for Gay & Lesbian Equality v Minister of Justice
1999
(1) SA 6
(CC) para 94:
‘
The
interests of good government will always be an important
consideration in deciding whether a proposed order under the 1996
Constitution is ‘‘just and equitable’’ for justice and equity
must also be evaluated from the perspective of the State and
the
broad interests of society generally.’
[72] An
order of constitutional invalidity which is retrospective without any
qualification could easily have undesirable consequences
that would
seriously disrupt the criminal justice system. As in the
National Coalition for Gay & Lesbian Equality v Minister of
Justice
case (supra),
the least disruptive way of giving relief to persons in respect of
past convictions for contraventions of ss 4(1)(b)
and ss 14(3)(b) of
the Sexual Offences Act is, in my view, through the established court
structures:
‘
On
the strength of the order of constitutional invalidity, such persons
could note an appeal against their convictions . . . where
the
period for noting such appeal has not yet expired or, where it has,
could bring an application for condonation of the late
noting of an
appeal or the late application for leave to appeal to a Court of
competent jurisdiction. In this way effective judicial
control can be
exercised. Although this might result in cases having to be reopened,
it will in all probability not cause dislocation
of the
administration of justice of any moment.’
(Para
97)
[73] It
must also be borne in mind that, with effect from 16 December 2007, s
14 of the Sexual Offences Act has been repealed in
its entirety by
the 2007 Act. Sections 15 and 16 of the new Act now regulate the
conduct that was previously regulated by ss 14(1)
and 14(3) of the
1957 Act. These sections set a uniform age of consent of 16 years for
both same-sex and heterosexual acts. Counsel
for the Minister thus
contended, in my view correctly, that it would make no sense simply
to declare ss 14(1)(b) and 14(3)(b)
of the 1957 Act to be
constitutionally invalid and to leave it to the legislature to deal
with the consequences of such an order
– the legislature
has
already done so.
[74] To
my mind, ‘appropriate relief’ in the present case (see s 38 of
the Constitution) lies in a combination of the severance
of words and
the reading in of other words into the relevant statutory provisions.
As was pointed out by the Constitutional Court
in
National
Coalition for Gay & Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1
(CC) paras 74-75:
‘
[74] The
severance of words from a statutory provision and reading words into
the provision are closely related remedial powers
of the Court. In
deciding whether words should be severed from a provision or whether
words should be read into one, a Court pays
careful attention first,
to the need to ensure that the provision which results from severance
or reading words into a statute
is consistent with the Constitution
and its fundamental values and, secondly, that the result achieved
would interfere with the
laws adopted by the Legislature as little as
possible. . .
[75] In
deciding to read words into a statute, a Court should also bear in
mind that it will not be appropriate to read words in,
unless in so
doing a Court can define with sufficient precision how the statute
ought to be extended in order to comply with the
Constitution.
Moreover, when reading in (as when severing) a Court should endeavour
to be as faithful as possible to the legislative
scheme within the
constraints of the Constitution.’
[75] The
remedial solution in this case lies in a severance of the words
‘under the age of 19 years’ after the words ‘a boy’
in s
14(1)(b) of the 1957 Act and the reading-in of the words ‘under the
age of 16 years’ in its stead. So too, in respect
of s 14(3)(b) of
the 1957 Act, the words ‘under the age of 19 years’, after the
words ‘a girl’ must be severed from that
section, to be replaced
by the words ‘under the age of 16 years’. After the severance and
reading-in, ss 14(1)(b) and 14(3)(b)
would read as follows:
‘
(1) Any
male person who –
.
. .
(b)
commits or attempts to commit with such a girl or with boy under the
age of 16 years an immoral or indecent act; or
.
. .
shall
be guilty of an offence.
(3)
Any female who –
.
. .
(b)
commits or attempt to commit with such a boy or with a girl under
the age of 16 years; or
.
. .
shall
be guilty of an offence.’
[76] It
is clear that a pre-existing provision of a law which is
unconstitutional became invalid at the moment the Constitution
took
effect. This is the effect of the supremacy clause of the
Constitution (s 2), in terms of which the Constitution is the supreme

law of the Republic and all law or conduct inconsistent with it is
invalid. Item 2(1) of Schedule 6 to the Constitution provides
that
all law that was in force when the Constitution took effect,
continues in force until amended or repealed, but only to the
extent
that it is consistent with the Constitution. In accordance with the
doctrine known as ‘objective constitutional invalidity’,
3
a Court making a declaration of invalidity simply declares invalid
what has already been invalidated by the Constitution. As indicated

above, however, the operation of the doctrine of objective
constitutional invalidity is subject to the possibility that the
court
making the declaration of invalidity may, in the interests of
justice and equity, limit the retrospective effect of such
declaration
in terms of s 172(1)(b)(1) of the Constitution.
[77] By
virtue of s 172(2)(a) of the Constitution, the orders of
constitutional invalidity to be made by this Court will have no
force
unless and until they are confirmed by the Constitutional Court.
Should this confirmation occur, then the appellant’s convictions
on
the last 6 counts (viz counts 6-11) will effectively cease to exist.
Thus, although this Court should make an order setting
these
convictions aside, this order will be subject to the confirmation by
the Constitutional Court of our order of constitutional
invalidity.
Sentence
[78] As
I have already indicated, although the High Court granted the
appellant leave to appeal against both conviction and sentence,

counsel for the appellant did not persist with the appeal against
sentence before us. The sentence of imprisonment for a period
of one
year imposed by the regional magistrate, and confirmed by the High
Court, in respect of each of the first four convictions
therefore
stands.
[79] It
appears from the record that the appellant has been in prison since 3
December 2003, as he was not granted bail pending
his trial or
pending his appeals. On 8 July 2005, the regional court sentenced him
to an effective period of 11 years’ imprisonment.
Thereafter, on 21
November 2006, the appellant’s effective sentence was reduced by
the High Court to seven years’ imprisonment.
This means that, at
the time we heard this appeal, the appellant had served more than two
years and seven months of his seven year
sentence. If the
Constitutional Court confirms the order of constitutional invalidity
to be made by this Court, then the appellant’s
convictions on the
last six counts will be set aside and only the sentences imposed in
respect of the first four counts (four years
in total) will stand.
This being so, this is an appropriate case in which we should
exercise our power in terms of s 172(2)(b)
of the Constitution by
granting temporary relief to the appellant, pending the decision of
the Constitutional Court. It would seem
that the best way to do this
would be to make an order suspending the sentence imposed on the
appellant in respect of counts 6
to 11 until such time as the
Constitutional Court has decided whether or not to confirm our orders
of constitutional invalidity.
The effect of this is that, pending the
decision by the Constitutional Court in this regard, the appellant’s
effective sentence
must be regarded for all relevant purposes as
being four years’ imprisonment.
Order
[80] In
the circumstances, the following order is made:
1.1 It
is declared that, with effect from 27 April 1994, ss 14(1)(b) and
14(3)(b) of the Sexual Offences Act 23 of 1957 are inconsistent
with
the Constitution and hence invalid to the extent that these sections
differentiate between heterosexual and same-sex sexual
activities by
setting the legal age of consent at 16 and 19 years, respectively.
1.2 It
is declared that, with effect from 27 April 1994, s 14(1)(b) of Act
23 of 1957 is to be read as though the words ‘under
the age of 19
years’ after the words ‘a boy’ have been replaced with the
words ‘under the age of 16 years’.
1.3 It
is declared that, with effect from 27 April 1994, s 14(3)(b) of Act
23 of 1957 is to be read as though the words ‘ under
the age of 19
years’ after the words ‘ a girl’ have been replaced with the
words ‘under the age of 16 years’.
1.4 In
terms of s 172(1)(b) of the Constitution, it is ordered that the
orders in paragraphs 1.1, 1.2 and 1.3 shall not invalidate
any
conviction for a contravention of s 14(1)(b) or 14(3)(b) of Act 23 of
1957 unless an appeal from or a review of the relevant
judgment is
pending, or the time of noting an appeal from that judgment has not
yet expired, or condonation for the late noting
of an appeal or late
filing of an application for leave to appeal is granted by a court of
competent jurisdiction.
2. These
orders, insofar as they declare provisions of Act 23 of 1957 to be
invalid, are referred to the Constitutional Court for
confirmation in
terms of s172(2)(a) of the Constitution.
3. The
appeal in respect of the appellant’s convictions on counts 1, 2, 3
and 4 fails.
4. Subject
to the confirmation by the Constitutional Court of the orders of
constitutional invalidity set out in paragraph 1 above
the appeal in
respect of the appellant’s convictions on counts 6, 7, 8, 9, 10 and
11 succeeds and those convictions are set aside.
5. In
terms of s 172(2)(b), the sentences imposed on the appellant in
respect of counts 6, 7, 8, 9, 10 and 11 are suspended pending
the
decision by the Constitutional Court in respect of the confirmation
of the orders of constitutional invalidity.
The
registrar of this Court is directed to:
6.1 forward
a copy of this judgment, together with the record, to the Registrar
of the Constitutional Court
6.2
serve a copy of this judgment on the Department of Correctional
Services and on the head of the prison in which the appellant
is
currently incarcerated.
___________________
BJ
VAN HEERDEN JA
CONCUR:
STREICHER
JA
CAMERON
JA
NUGENT
JW
KGOMO
AJA
1
See
htpp://www.ageofconsent.com/ageofconsent.htm
,
accessed 4 March 2008 and also
http://www.avert.org/aofconsent.htm
,
accessed on 4 March 2008). Both these websites contain very useful
and comprehensive tables listing the ages, in most countries
of the
world, at which people of various sexual persuasions (heterosexual,
gay and lesbian) can legally consent to voluntary
vaginal and anal
intercourse, as also to other sexual activities. The table from the
latter website, headed ‘Worldwide ages
of consent’, is annexed
to the respondent’s supplementary heads of argument. This website
notes that, in many countries,
the legal age of consent is higher
when one partner is in a position of trust with regard to the other,
or one partner takes
advantage of the other’s immaturity (see for
example, s 3(1) of the United Kingdom Sexual Offences (Amendment)
Act of 2000,
s 153(1) of the Canadian Criminal Code and Article
207(b) of the Austrian Criminal Code, as introduced in 2002). It is
also noted
that the average legal age of consent across the world
for heterosexual, gay and lesbian persons is 16 years.
2
See Issue Paper, Project 108
Sexual Offences
against Children
(31
May 1997) Chapter 3. An interesting perspective, by South African
children themselves, on the protection of children against
sexual
exploitation and abuse can be found in Children’s Rights Project
(1998-1999)
Report on
Children’s Rights: ‘They should listen to our side of the story’
(a publication of the
Community Law Centre, University of the Western Cape) part H.
3
See
Ferreira v Levin
NO; Vryenhoek v Powell NO
1996 (1) SA
984
(CC) paras 27-28;
National
Coalition for Gay and Lesbian Equality v Minister of Justice
1999
(1) SA 6
(CC) para 84;
Gory v Kolver NO
2007 (4) SA 97
(CC) para 39.