About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2015
>>
[2015] ZAKZPHC 41
|
|
Chetty v S (AR 377/2014) [2015] ZAKZPHC 41; 2016 (1) SACR 34 (KZP) (21 August 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NO: AR 377/2014
DATE: 21 AUGUST 2015
REPORTABLE
In the matter between:
RAVI
CHETTY
..................................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Delivered on: Friday, 21 August 2015
OLSEN J (HENRIQUES J et NAIDOO AJ
concurring):
[1] The appellant is a teacher at a
school known as the New Hope Christian Academy. After a trial which
commenced in October 2012
and ended in April 2013, the appellant was
convicted and sentenced on two counts under the Criminal Law (Sexual
Offences and Related
Matters) Amendment Act, 32 of 2007 (the
“Amendment Act”). The appellant was sentenced to three
years imprisonment,
wholly suspended, on count 1; and a fine of R1000
was imposed in respect of count 2. The complainant in each instance
was a girl
who was a pupil at the school, 13 years of age at the time
of the incidents. The appellant appeals against his convictions and
sentences with the leave of the court a quo; but no submissions have
been made on his behalf to the effect that either of the sentences
was inappropriate.
[2] Section 18 of the Amendment Act is
headed “Sexual Grooming of Children”. The first count
put to the appellant was
that he contravened s 18 (2) (b) of the
Amendment Act in that during 2010 he described various forms of oral
sex to the complainant
with the intention thereby to encourage or
persuade the complainant to perform, or to diminish or reduce
resistance on her part
to the performance of, a sexual act with the
appellant. In its relevant part s 18(2)(b) reads as follows.
“(2) A person (“A”)
who –
(b) … describes the commission
of any act to or in the presence of B with the intention to encourage
or persuade B or to
diminish or reduce any resistance or
unwillingness on the part of B to –
(i) perform a sexual act with A …
is guilty of the offence of sexual grooming of a child.”
[3] It is not clear to me whether there
is an omission in the section where it speaks of the description of
the commission of “any
act”, the true intention being
that it should be any “sexual” act. But that issue does
not arise in this case.
As will be seen, it is common cause that the
appellant described sexual acts to the complainant. The question at
trial, and now,
is whether the State established that this was done
with the intention to encourage or persuade the complainant to
perform a sexual
act with the appellant, or to diminish or reduce any
resistance or unwillingness in that regard on her part. As will be
seen,
the answer to that question depends on whether the State proved
beyond a reasonable doubt that the complainant’s account of
events was true.
[4] Count 2 was a charge of sexual
assault under s 5(1) of the Amendment Act. According to the charge
sheet (as amended) the appellant
intentionally sexually violated the
complainant by placing his knee between her thighs, and by rubbing
her thighs with his hands.
I propose to say no more about count 2
until count 1 has been disposed of. The charge of sexual grooming is
the predominant feature
of this case, and its outcome has a bearing
on the fate of the appellant’s conviction of common assault on
count 2.
[5] The learned Magistrate in the court
a quo accepted the complainant’s evidence and rejected that of
the appellant. She
did so after giving a full account of the
evidence of the witnesses which she regarded as the most important
ones. She dealt in
less detail with those she regarded as less
important. She concluded that the State had proved its case on count
1 (sexual grooming)
beyond a reasonable doubt, and found that the
State had proved common assault, said to be a competent verdict, on
count 2.
[6] Counsel who represented the
appellant before us delivered a set of heads of argument largely
dedicated to an attack upon the
credibility of the complainant. Many
of the references to the record in counsel’s heads of argument
do not support the submissions
with respect to which they were made;
and in other cases appear to me to have been misread. The heads of
argument were expressed
in strident terms. The pinnacle of this was
a contention that it is evident that the complainant had “fabricated
her entire
evidence”.
[7] In oral argument the submissions
for the appellant were more measured. Whilst the submissions
continued to support a conclusion
that the complainant was an
untruthful witness, the principal argument was that the magistrate
had reached her conclusions without
an evaluation of all the
evidence, and especially without an evaluation of the complainant’s
evidence and that of the appellant.
In my view the submission goes
too far. The magistrate did evaluate the evidence. Whether all of
it which was actually relevant
was sufficiently considered may be a
matter of opinion; a decision on the facts cannot be expected to be
supported by an analysis
of every nuance of evidence, accompanied by
judicial commentary. Having said that, in my view it is in this case
quite difficult
to deal with the appellant’s argument that the
evidence was insufficiently evaluated without attempting the exercise
oneself.
I propose to do so without thereby implying a predilection
to a conclusion that there was any misdirection on the part of the
trial court which posed an obstacle to a just outcome in the case.
An evaluation of the evidence based solely on the appeal record
cannot substitute for the advantages that a trial court has,
especially when it comes to the evidence of a child on a subject such
as the one with which this case is concerned. I am mindful of the
duties and role of an appeal court when no particular misdirection
on
the part of the trial court has been identified. In particular
findings of fact will only be disregarded on appeal if the recorded
evidence shows them to be clearly wrong; and whatever its own
evaluation of the recorded testimony may be, the appeal court must
bear in mind the “advantage that a trial court has of seeing,
hearing and appraising a witness”. (S v Monyane and Others
2008
(1) SACR 543
(SCA) para [15].)
[8] It would be convenient, before
giving an account of the material evidence in this case, to say
something about the environment
within which the events canvassed in
the evidence took place. The New Hope Christian Academy was
established by a Pastor Isaac
who is the head of the church to which
presumably most if not all the pupils belong. Pastor Isaac described
himself as the pastor
and spiritual administrator of the school. His
wife, Mrs Isaac, is the principal. The management of the school is
accountable
to him and he is in particular responsible for the staff
(including the engagement and dismissal of them). Teachers are
accountable
to Pastor Isaac. He is the overseer. He is from time to
time called upon to attend at school when there is some personal
difficulty
with an individual child or with staff, and also visits
the school to “give life skills” (as he put it when he
gave
evidence).
[9] The appellant was employed as a
teacher when the school was founded. Given his age that suggests
that he commenced work as
a teacher at the age of 18 years. He
teaches maths and science. The appellant is not married. He was
either 33 or 34 years of
age when the events giving rise to this
prosecution took place. He was also a youth leader in Pastor Isaac’s
church.
[10] The mode of teaching employed at
the school is different to that followed in an ordinary school.
There are no classrooms.
Teaching takes place in a large room which
Pastor Isaac described as a church hall. The younger children
(children who would
be regarded as being in lower grades) are
accommodated to one side of the teaching room and the older ones in
another. Each child
works at her or his own pace. They are not
formally in “grades” although each child has a “form
teacher”.
The appellant was the complainant’s form
teacher at the material time.
[11] The children have cubicles within
which each student sits and does his or her own work under the
guidance of a supervising
teacher and a monitor. When a child
experiences difficulty with work, she or he puts up a flag and a
supervising teacher comes
to assist. Each teacher has a desk or
table within the room. Pupils may go up to the teacher’s desk
for assistance. Extra
lessons, when the school is not in its
ordinary session, would take place at the teacher’s desk.
[12] The school is a small one. It
appears that the teachers get to know the pupils rather well for that
reason. In the appellant’s
case these closer than usual
relationships may have been fostered as well by his role as a youth
leader at the church. The complainant,
13 years old at the time of
the material events, had been at the school throughout her scholastic
career, commencing with pre-school.
The appellant had been there
throughout. She had an apparently good and close relationship with
the appellant. He appears to
have been popular. Two other pupils
who gave evidence (called by the defence) confirmed the appellant’s
popularity and the
happy and comfortable relationship they (and the
complainant) had with the appellant. Judging by the appellant’s
evidence
he was not as close to all his pupils as he was to the
complainant.
[13] Before the events which gave rise
to this case occurred the complainant had acquired a boyfriend. She
had met him at a swimming
club, which may be the only place where
they saw each other. He was not a pupil at the school. All the
evidence (such as it is
on this issue) points to the fact that the
complainant and her boyfriend were mere childhood sweethearts. As
she put it, they
had not even kissed or hugged.
[14] The complainant was the first
witness called for the State. Despite her age (15 years at the time
of giving evidence), and
despite the subject matter of the trial, she
gave evidence without the assistance of an intermediary.
[15] The material events commenced in
October 2010. The complainant and the appellant were talking
together. The appellant does
not dispute that during this
conversation he told the complainant that she should break off her
relationship with her boyfriend.
The complainant and the appellant
agree that in the course of that conversation some level of drop-off
in the complainant’s
grades was discussed as a reason for doing
so. However, the complainant asserts that it went further than that.
According to
her the appellant said that if she wanted to be part of
his life she should break up with her boyfriend. The appellant
disputed
that, but under cross-examination the complainant did not
waiver on the point. (It should be mentioned that the complainant
was
cross-examined on a statement she had made to the police which
was not produced in evidence. There is nothing on the record to
show
why the appellant’s attorney did not hand in the statement as
an exhibit. As an appeal court we are accordingly left
in the
position where the record draws our attention to the alleged
inconsistencies without being able to consider them in context;
and
where we are deprived of the benefit of observing for ourselves where
the statement was consistent with the evidence.)
[16] About two days after this event
the complainant called off her relationship with her boyfriend. She
was sad about this, but
not angry. This evidence (upon which her
friends were able to comment) was not contradicted.
[17] Some weeks later the complainant
sought out the appellant for some assistance with her school work,
after which the conversation
between them which is most material to
this case took place. Either version of the conversation reveals
that there was a disturbingly
inappropriate relationship between the
appellant (an apparently trusted male teacher over 30 years of age)
and the complainant
(a trusting 13 year old female pupil). The
subject of the relationship between the appellant and a former female
teacher at the
school came up. In her evidence in chief the
complainant said that she could not remember how the subject arose.
When cross-examined
it was put to her that it arose because she asked
about it. Her response was that it could be so, but she could not
recall. The
complainant’s evidence is that the appellant said
that he and the teacher did not have a sexual relationship “but
that
they saw each other naked and that he fingered her”. It
was put to the complainant in cross-examination that she had been
curious about the former teacher and that the appellant had told her
that he and the former teacher had not had sexual relations.
The
appellant contradicted that when he gave evidence. According to his
evidence what he said was that he and the former teacher
were “going
out”. He said that he would not have told her about his sexual
life. He offered no explanation as to
why his attorney would have
put something different to the complainant.
[18] According to the complainant the
conversation developed from there. The appellant volunteered that
there was a former pupil
of the school who was “hot”.
The appellant denied that he had said that. That dispute aside, it
is common cause that
the conversation went further.
[19] According to the complainant the
appellant proceeded to ask her whether she understood the meaning of
certain sexual terms
which are part of the vernacular. These were
raised one at a time. She answered in the negative and he proceeded
to describe
each term in clear vivid terms, one by one. The terms
covered and explained were female on male oral sex, male on female
oral
sex, mutual simultaneous oral sex and the subject already
mentioned, “fingering”. The appellant in his evidence
admitted
the graphic account of these exchanges given by the
complainant, but contended that these subjects arose and were
canvassed as
a result of an enquiry in each instance by the
complainant. When cross-examined along those lines the complainant
was adamant
that it was at the instance of the appellant that these
topics were discussed as they were.
[20] When asked to explain how, on his
version, this exchange about sexual terms arose, the appellant stated
that he wanted to explain
the dangers of “pop-ups” on the
internet. What exactly these pop-ups were, and why and how
frequently they might affect
any internet use by a child, were
subjects which were not canvassed in evidence. The implication was
that “pop-ups”
are or lead to pornography, and that
implication is one which appears to have been understood by all
involved in the trial. Accepting
that, the appellant offered no
acceptable explanation as to why he saw it as his duty or role to
enter into the subject of internet
pornography in a private
discussion at school with a 13 year old female pupil. He accepted
that he was not qualified and that
others were responsible for
dealing with such life issues (assuming it to be appropriate at all
to lead a 13 year old child beyond
a normal discussion of the “birds
and the bees” into the realm of sexual practices designed to
achieve sexual pleasure
otherwise than through sexual intercourse.)
[21] It is obvious that if the
appellant was innocent of the charge put to him on count 1, then his
extraordinary foray into graphic
sexual terms and adult sexual
behaviour must have taken place merely in his capacity as an
educator. His difficulty is not only
that others were responsible,
especially when it came to the girls, for whatever life skills
training the school provided, but
also that he himself could not
claim to be qualified in that regard at all; again, certainly when it
came to girls. It was argued
on his behalf that these exchanges
amounted to nothing more than an error of judgment. Even if one
accepts the appellant’s
version that the conversation was
generated by enquiries from the complainant, and not at his instance
(ignoring, for the moment,
that on his own version it was he who
raised the subject of internet pornography), the first enquiry from
the complainant ought
properly to have generated a referral to a
female teacher qualified to deal with such enquiries. In my view the
appellant had
to know that. He was a teacher with 16 or more years
experience. He himself said that there were rules about intimacy
with pupils.
For example, the “30cm” rule, mentioned by
him, was apparently designed to warn teachers to keep an adequate
physical
distance between themselves and pupils.
[22] In her evidence the complainant
denied that the discussion about sexual terms arose out of a
conversation about the internet.
She could not remember precisely
how it happened. She said that she thought he had asked her if she
wanted to know what certain
things were and that she had replied in
the affirmative. Under cross-examination she agreed that she was
curious. She said she
was immature. She ascribed no intention to
the appellant, motivating the conversation. She accepted that when
she replied in
the affirmative to the question as to whether she
would like to know what each successive term meant, she was curious
and in effect
encouraged the appellant to carry on. In
cross-examination she said she was uncomfortable but not disgusted.
She accepted that
she did not think about any repercussions, or where
the questions were leading. She did not feel that the appellant had
overstepped
the mark. It strikes me that these reactions may perhaps
be put down to what has been called the “precocious sexuality”
of children newly entered into or during puberty. In her evidence
the complainant herself said that “I was maybe physically
mature, but emotionally and mentally, you are not all there –
you learn – and that’s what I was in.” She
said
that she did not know that his conduct may constitute an offence.
[23] Later on in her cross-examination
the issue that arises in respect of count 1 (that the conduct should
be with the intention
to encourage or persuade a child to indulge in
sexual activity, or to reduce resistance or unwillingness in that
regard) was put
to the complainant with a view to getting her to
express her opinion on what the appellant’s intention was. She
made no
attempt to make of the case more than she could say it was.
Her answer was “I don’t know the intentions, I don’t
think I can comment”. But when later on she was pressed and it
was put to her that the exchange over sexual terminology
was merely
an “informative chat” her response was “I don’t
think his intentions were pure”.
[24] Two other matters came to light
and were dealt with somewhat crisply in the course of evidence of
both the complainant and
the appellant. In her evidence in chief it
came out that a week or so before the discussion about sexual
terminology the appellant
had asked the complainant whether she
wanted him to kiss her, and she said that her response was in the
negative. Under cross-examination
she was pressed on the subject as
to whether there were any suggestions made in any form after he had
described the sexual terminology,
and that elicited the answer that
the appellant had said that if she ever wanted someone to teach her
or show her, he would do
so. Both of these allegations were denied
by the appellant; but strangely enough, despite the fact that some
rather innocuous
“contradictions” between her statement
to the police and her evidence were raised in cross-examination of
the complainant,
these two allegations were not tackled in that
fashion.
[25] The complainant was pressed on her
curiosity. She was asked whether she remained curious after these
terms had been explained
to her. Her response was that the appellant
had said to her that if she ever wanted to ask him anything she must
come to him.
She did so. About a week after the conversation about
sexual terminology she asked him what a “scrotum” was.
He
gave her the answer. The appellant confirms this. These facts,
about which there is no dispute, are not consistent with the
proposition
that the earlier exchange about sexual terms was a mere
error of judgment on the appellant’s part. They suggest an
intention
on the appellant’s part to cultivate a facet of his
relationship with the complainant which had been established during
the
earlier exchange.
[26] According to the complainant, a
few weeks after the discussion on sexual terms, during November, and
apparently quite close
to the end of the school year, the events
which gave rise to count 2 took place. The witnesses who dealt with
it directly were
the complainant, the appellant, and two of the
complainant’s friends whom I shall call “A” and
“B”.
As will be seen Pastor Isaac dealt with this
subject indirectly.
[27] A group of four friends were
accustomed to take extra maths lessons from the appellant. It seems
that this was normally done
three at a time and that the usual
composition of the group was A, B and the complainant. These lessons
were given at the appellant’s
desk.
[28] The appellant’s desk is one
and a half metres long and only one metre wide. At the one end the
desktop is supported
by a pedestal which houses drawers. At the
other end it is supported by a board which blocks a view underneath
the table from
that side, but otherwise performs no function other
than to support the desktop. Being only 1,5 metres long the desk can
only
accommodate three students sitting opposite the appellant for a
lesson. There is no dispute about the fact that B customarily sat
in
the middle with the complainant to her right and A to her left. The
complainant and B were able to sit with their legs under
the table.
In the case of A the pedestal obstructed this comfortable
straight-ahead seating arrangement.
[29] According to B these extra lessons
took place about three times per month. A’s estimate was once
per week. During the
course of such a lesson the girls sat with
their work in front of them, writing in their books, and getting help
from the appellant
when it was required.
[30] The complainant dealt with the
relevant events in her statement to the police (which was referred to
on the subject, but, it
will be recalled, not handed in); in her
evidence in chief; under the cross-examination which followed her
evidence in chief in
the ordinary course; and finally when recalled
after the close of the defence case, and after an inspection-in-loco
had been held.
The inspection-in-loco was presumably designed to
allow the magistrate to acquaint herself with the place where the
events the
complainant spoke to were played out, and in particular
with the appellant’s desk and chairs, and the seating
arrangements.
Unfortunately there was no formal recording of the
observations made during that inspection. Obviously, given the
magistrate’s
verdict and judgment, the inspection satisfied the
magistrate that the complainant’s account of events could not
be dismissed
upon the basis that what she said happened could not
possibly have occurred. The absence of a formal record of the
inspection-in-loco
does not hinder us as an appeal court from
accepting this finding.
[31] During the course of the extra
lesson on this occasion the complainant says that the appellant
placed his knee between her
slightly parted legs under the table. He
moved his knee from side to side between her thighs. She was wearing
her school skirt.
After a while he mouthed words at her, telling her
to open her legs a little wider. He mouthed words to the complainant
again,
asking her if it felt nice; and she replied in the
affirmative. He then removed his knee, moved himself forward so that
his chest
touched the edge of the table top, and placed his hands (or
a hand) under the desk and under her skirt, and commenced caressing
the complainant’s inner mid thigh. This lasted some minutes
before he stopped. The lesson ended and A and B left, leaving
the
complainant behind with the appellant, apparently not for long. In
the absence of the other two the appellant asked the complainant
what
colour panties she was wearing. She replied that she did not know.
[32] On the appellant’s version
the complainant’s account of the events on that day are a
complete fabrication. During
his evidence in chief, when he denied
the occurrence, he claimed that he would have had to “crouch or
go underneath the table”
in order to touch the complainant’s
legs. In cross-examination he said that he would have to “go
underneath, bend
down and go underneath the table to touch her”.
He asserted that it was not possible to reach her from where he was
sitting.
That evidence may safely be rejected, but that does not
mean that the appellant’s denial should be rejected. All it
means
is that the events described by the complainant could have
occurred.
[33] The complainant was subjected to
extensive detailed cross-examination on two occasions concerning
these events. Few stones
were left unturned in the effort to
discredit her. I would make the general observation that during the
course of much of this
questioning it seems to have been overlooked
both by the appellant’s attorney and by the magistrate that the
person being
cross-examined was only 15 years old. I give an
example. The complainant had been asked earlier to estimate the gap
between her
knees at a certain stage. Her knees were under the desk.
It is not clear to me how in the circumstances she was supposed to
make
an estimate. Furthermore, the events had taken place two years
before when she was 13 years of age. Nevertheless her answer was
15cm. She was cross-examined on this when recalled after the close
of the appellant’s case. A ruler was produced which
resulted
in the complainant having this proposition put to her. “So
your knees were now 12cm, not 15cm apart.” Observations
like
that do not advance the search for the truth at all, and only serve
to harass. An adult witness may recognise an observation
like that
as a piece of foolishness. But directed at a 15 year old child there
is a risk that the tactic becomes unfairly intimidatory.
Before us
counsel for the appellant argued that the extensive cross examination
of the complainant on the subject of how the appellant
moved his
chair or his large frame in order to reach her thigh revealed
inconsistencies which render the complainant’s evidence
unreliable. In my view no such inconsistencies were revealed, and
counsel’s submissions did not bring to account that one
could
hardly expect the complaint’s memory for this aspect of the
event to be anywhere near perfect given the distraction
(to put it at
its lowest) of what she says was going on under the desk.
[34] Other so-called contradictions
with regard to the complainant’s account of this event were
raised in argument. For example
the complainant was criticised upon
the basis that her account of the events when she gave evidence in
chief did not include the
fact that the appellant moved or swung his
knee between her thighs. It was put to her that she had said this in
her statement
to the police. She confirmed that and said that she
had forgotten to mention that when giving her evidence in chief. In
her evidence
in chief, dealing with the appellant’s request
that she should open her legs wider, and his question as to whether
she liked
what was being done, she said that these words were
“whispered”. The magistrate herself saw something of a
contradiction
between this and the word the complainant finally used
to described these communications, that is to say that the words were
“mouthed”.
The criticism is not warranted. The
complainant’s evidence was clear. Her two friends heard
nothing, despite the fact
that the children were sitting very close
to each other and very close to the teacher. It had to be that at
the material times
A and B were leaning forward to their work on the
table in front of them. It was clearly never the complainant’s
evidence
that the appellant uttered the words in a manner capable of
being heard by A and B. She may be criticised for struggling to find
the correct word to describe the manner in which the appellant
communicated with her, but not for having contradicted herself as
to
the facts of which she was attempting to give an account.
[35] B was the first of the
complainant’s two friends called by the defence. She described
how she sat in the middle with
A on her left and the complainant on
her right. This was always the order in which they sat.
[36] This leading question was put to B
during her evidence in chief, and the answer is reproduced as well.
“And where would Mr Chetty’s
hands be throughout this session? --- On the table”.
Exactly the same question and exactly
the same answer, word for word, occurs in the transcript of the
evidence in chief of A, who
followed B as a witness. There was no
reason why either girl should remember whether the appellant’s
hands disappeared from
the table at any time during any of the
frequent sessions. They did not know which extra lesson was the one
during which the events
they were commenting on allegedly occurred.
They would have had no reason to be aware of whether the appellant
removed a hand,
or his hands, from the desktop at any time during any
of the extra lessons.
[37] Both B and then A were asked to
comment upon the proposition that the appellant had placed his knee
between the complainant’s
thighs. The answer in each case was
that it could not have happened because the witness would have
noticed it, either by seeing
or feeling it. One understands B’s
statement that she might have felt it, as she was sitting next to the
complainant in
a relatively confined space. But A was not. Neither
of them could have seen what happened, if it happened, without
drawing her
upper body backwards, away from the table, deliberately
to peer under the table. They would not have done so unless
something
had caught their attention. In my view the complainant’s
evidence that her two friends could have seen what happened but
did
not see what happened coincides with that assessment. (The
complainant says that if they had seen what had happened they would
have raised it with her. That was the nature of their relationship.
But they did not raise it with her.)
[38] The last witness called for the
defence was Pastor Isaac. According to him, when during 2011 the
State’s witness statements
were provided to the defence, the
appellant decided to reveal to Pastor Isaac that there was, in
addition to the allegation regarding
the discussion of sexual terms,
an allegation that the appellant had touched the complainant
inappropriately in the manner presently
under discussion. Pastor
Isaac made his own investigation. He involved A and B in that
investigation. The magistrate was criticised
in argument on behalf
of the appellant because in a few lines she concluded that the
evidence of A and B did not take the matter
much further. In my view
her decision in that regard was correct. Her attitude may very well
have been that the less said, the
better. But perhaps, given the
criticism of the magistrate, I should mention that, reading the
record, one sees that there is
a real possibility that, concerning
the evidence of what could or could not have happened at the
appellant’s desk, A and
B had either deliberately or
inadvertently been coached, presumably by Pastor Isaac. The thrust
of the evidence of A and B was
that what the complainant said had
happened was impossible. The appellant’s attorney thought that
Pastor Isaac was going
to say the same thing, but was presumably
disappointed, as this exchange during his evidence in chief on the
subject of his investigation
reveals.
“And your finding was that it was
impossible for the accused to have done something like this, or
something like the allegations
that were brought against him. --- I
said unlikely, improbable.”
[39] Two other features of the
appellant’s evidence concerning these events should be
mentioned. Firstly, it was put to the
complainant under
cross-examination that the appellant would say that he may
inadvertently have touched her leg with his, but not
deliberately.
He did not confirm this when he gave evidence. Secondly, in his
evidence in chief, dealing with the events of “touching”,
he spoke mostly in general terms about what would happen when the
teaching sessions with the three girls were taking place. But
sometimes he used language which conveyed that he knew which occasion
of extra tuition the complainant had been speaking about
in her
evidence. It may be, however, that this merely reflected a
deficiency in the appellant’s language skills.
[40] According to the complainant the
next day she sought the appellant out in a room where the teachers
would go to work, and where
books and the like were stored. The
purpose of the visit was to tell him that he must not again do what
he had done the day before.
She found him sitting on a couch in that
room. She approached him, standing on one side of the couch. He put
his hand under
her skirt just over her knee. He asked her if she had
told anyone what had happened the day before. She told him that he
must
not do that to her again. The appellant was asked to comment on
this evidence under cross-examination. The only answer he offered
was “well, I didn’t touch her on her legs”. He did
not deny meeting with the complainant in the room, where
they were
alone; nor that any discussion at all had taken place regarding his
conduct and his relationship with the complainant.
This was
notwithstanding the fact that the complainant’s evidence
concerning this meeting was repeated to him before he was
asked to
comment, and notwithstanding his acknowledgment that he had heard
what the complainant had to say about it. On the other
hand, the
cross-examiner did not press the point, and insist that the appellant
deal with the issue in more detail. Nevertheless
when the complainant
was cross-examined concerning this meeting, it was not put to her
that no such meeting took place. The appellant’s
attorney took
the opportunity of extracting concessions from the complainant that
she felt confident and comfortable telling the
appellant not to do it
again, and that she had expected him to comply.
[41] Over the school holiday between
the 2010 and 2011 academic years the complainant says that she became
sensitive to the fact
that what had occurred in 2010 was wrong. This
exchange between the magistrate and the complainant illustrates the
complainant’s
evidence as to her state of mind.
“Now, I need you to tell me and I
need you to be clear now, if you are not happy that your dad can hear
– listen to
this – it may be uncomfortable to hear. We
are all past that now. You know we are here already. There is a
case we just
need to hear you – alright. --- I let these things
happen to me.
I can’t hear you. --- I let
things like these happen to me.
That you let it happen? --- Yes.
What did you let happen to you? --- I
let him talk to me like that and let him touch me.”
[42] According to the complainant on
the first day back at school in 2011 she went up to the appellant’s
table and he said
to her that “all the funny things that
happened last year weren’t going to happen again”. Her
response was “you
know what, I don’t want to be close
like how we were last year”. According to the appellant the
complainant informed
him that she did not want to discuss “these
terms, these terminologies and stuff like that, again”. He
said that he
thought she said that on the first day of school in
2011.
[43] The complainant’s mother’s
evidence explains how this case reached the courts. She had heard
some rumours that
the appellant was touching the girls at the school.
She initially did not believe it. But she decided to ask the
complainant
whether she knew anything about this. The complainant
replied in the negative. She told the complainant that if anything
was
going on she (the complainant) should tell her parents. The
complainant’s mother then decided that she should ask the
question
again. The story came out. A meeting with Pastor Isaac was
one of the products of this. It was by all accounts unsatisfactory.
The details of the meeting, and how it came about, as well as details
concerning certain SMSs sent during the long holiday, do
not
contribute anything to the ultimate decision in this appeal. There
are, however, two matters of some importance arising from
the
meeting. According to Pastor Isaac he spent about half an hour
questioning the appellant in advance of the arrival of the
complainant’s parents for the meeting. During that time the
appellant did not disclose to him that he had discussed the
sexual
terms referred to earlier with the complainant. During the meeting
the complainant’s father challenged the appellant
on this issue
and the appellant denied the allegation that he had described sexual
terms to the complainant. The complainant’s
father was
justifiably upset at the time and appears to have behaved
aggressively. The appellant explained that he made his denial
because he was scared – “because the father woke up to
hit me”. However it appears that it took some months
before
the appellant confessed to Pastor Isaac that the discussion on sexual
terms had in fact taken place. The other observation
to be made is
that according to the complainant’s mother, at the meeting the
appellant raised the question of the complainant’s
so-called
boyfriend, saying that you couldn’t believe what the
complainant was saying. According to the complainant’s
mother
the appellant said that the complainant was not a good girl –
“she was a loose girl, a bad girl”. This
evidence was
not contradicted by either the appellant or Pastor Isaac. It is not
consistent with the appellant’s contention
that he denied the
discussion of sexual terms because he was scared. One would have
thought that such a slight on his daughter’s
character would
have enraged the complainant’s father even more than an
admission that a discussion of sexual terms had taken
place.
[44] The final witness called by the
State was a R……. G……... She was 24 years
of age when she gave
evidence and she spoke of events that had
occurred in 2004 when she was 15 years of age. Miss G……….
on one
occasion asked the appellant to draw a picture for her and he
offered to draw the picture on her hand. She became uncomfortable
because, she said, he held her hand in a seductive way. On another
occasion she was at his table getting assistance. Her cousin
was
there as well. The appellant put his hand on her knee and she pushed
it away. Her cousin saw this and reported it, as a result
of which
Miss G..........’s father challenged the principal and Pastor
Isaac at a meeting, which resulted in an apology both
to her and to
her parents. When she was cross-examined it was put to her by the
appellant’s attorney that the appellant
told her that he had
“possibly” fallen in love with her and that he wanted to
marry her. Miss G.......... confirmed
this.
[45] Miss G……. was called
despite an objection from the appellant’s attorney (who had
access to Miss G……….’s
statement) that her
evidence would be irrelevant. There was merit in this objection.
There is a considerable distance between
the events described by Miss
G………. and those involving the complainant.
There was nothing trivial about the
inappropriate conduct of the
appellant towards Miss G………... Her father was
right to be angry about it. However
what the complainant described
was something far more crude and openly sexual in nature. It
involved no protestations of love
on the part of the appellant, which
is unsurprising bearing in mind that he was seven years older by the
time he behaved inappropriately
(on anyone’s version) with the
complainant, and bearing in mind the fact that the complainant was
two years younger than
Miss G………. was when she
was confronted with misconduct on the part of the appellant.
Accordingly, upon the
basis that Miss G……….’s
evidence was tendered as similar fact evidence, it was disqualified
at the first
hurdle.
[46] In dealing with the evidence the
magistrate observed that the appellant’s interaction with Miss
G……….
did not go to prove that he was guilty of
the current offence, and that it would be improper to reason in that
fashion. However
the magistrate found that it was permissible to
accept Miss G………’s evidence on the basis
that it showed
“that it is not impossible or improbable that
the [appellant] behaved in an inappropriate or improper manner
towards a student.”
In my view the magistrate in effect found
that Miss G……….’s evidence went to the
appellant’s
character. For that reason also the evidence ought
to have been disregarded. There was no connection between the two
sets of
facts as regards their circumstances, or as regards proximity
of time or method. (R v Bond
1906 2 KB 38
9 at 424.) What occurred
in the case of Miss G.......... could not generate an inference as to
the existence of the facts in issue
in the present case. (S v Green
1962 (3) SA 886
(A) at 894 D – E.)
[47] It is not clear that the evidence
of Miss G.......... was taken into account by the magistrate when she
found that the State
had proved the complainant’s version of
events to be correct. (The credibility finding in favour of the
complainant and
against the appellant appears in the judgment before
Miss G..........’s evidence is dealt with.) Proceeding upon
the assumption
that the magistrate did misdirect herself by allowing
Miss G..........’s evidence to influence her decision, I am
nevertheless
of the view that the magistrate’s assessment of
and preference for the State case was well and properly founded.
[48] The magistrate did not find the
appellant to be a satisfactory witness. He did not impress the
court. To the extent that
it can, a reading of the transcript
suggests that the magistrate’s assessment of his evidence was
correct. It is clear that
the appellant was an evasive witness. As
already pointed out there were obvious contradictions between the
appellant’s evidence
and the instructions he gave his attorney.
Passages in his evidence where he attempted to explain how he came
to be discussing
crude sexual terms with a 13 year old girl are, to
say the least, unconvincing. His dishonesty after the event, and his
delay
in confessing to his employer that he had discussed sexual
terms with the complainant, is inconsistent with his contention that
the crucial conversation between them was nothing more than an
innocent “informative chat” or the product of an error
of
judgment.
[49] Of course, as the magistrate
warned herself, there was no onus on the appellant to prove his
innocence. Likewise, as the magistrate
again warned herself, in
relation to both the discussion of sexual terms and the touching of
the complainant’s thigh, the
complainant was a single witness,
and a child. The magistrate approached her assessment of the
complainant’s evidence, with
reference to R v Mokoena
1932 OPD
79
, upon the basis that it was required to be clear and satisfactory
in every material respect.
[50] I explained at the outset that
many of the criticisms of the complainant made in argument simply had
no foundation in the record.
With respect to a number of instances
counsel for the appellant offered the criticism that the complainant
was tailoring her evidence.
I can find no instance where the
criticism was justified, and indeed in none of them can I see why it
would have been necessary
for the complainant to tailor her evidence.
On the contrary, the complainant was remarkably candid about her own
role in the events
which took place. Another example would not be
out of place. Under cross-examination she was challenged as to why
she did not
report what had happened. The complainant’s answer
was that she realised a bad thing had happened, that she was
embarrassed
and did not want anybody to know about it. The
questioning continued.
“Was this because you had
consented to this whole thing happening, is that why you felt bad?
--- When I rethought what happened,
yes.
Did you think it was your fault? ---
What I do know is that I do have a part to blame but it is not the
whole thing, I don’t
deserve all the blame. I do know what I
did was wrong but I don’t deserve all the blame.”
[51] The magistrate found that the
complainant testified in a convincing fashion and that, despite her
age, she gave her evidence
clearly and satisfactorily. Judging from
the record that assessment was correct. The complainant’s
answers to questions
were direct. When she could not remember a
detail she said so. She spoke directly without any attempt to escape
responsibility,
or to downplay her own role. The record of her
evidence is impressive. It was nevertheless not flawless, but in my
view the magistrate
cannot be faulted for having come to the
conclusion that it was trustworthy, notwithstanding any shortcomings.
(See S v Sauls and
Others
1981 (3) SA 172
(A) at 180 C – H.)
There were no faults in her evidence which would not be explained by
the fact that she was a young child
when testifying, and speaking on
a difficult subject two years after the events had taken place.
[52] Insofar as the probabilities are
concerned, if the appellant’s version is the truth then the
complainant’s evidence
was a remarkable fabrication. Whilst
it is correct that perhaps especially in sexual cases motives may
remain well hidden, it
should nevertheless be observed that the
evidence in this case revealed no motive for the complainant to
invent the story she told.
On the contrary, her relationship with
the appellant was a good one, and one gains a clear impression that
but for the incident
of touching the complainant would have regarded
the discussion of sexual terms as water under the bridge. It is
clear from both
of the slightly different accounts of the verbal
exchange between the complainant and the appellant on the first day
of school
in 2011, that the complainant had decided to leave well
alone, and deal with what had happened on her own, despite the fact
that
she had come to realise the import of what had occurred whilst
reflecting on it during the long school holiday. Insofar as the
episode of touching is concerned, it is improbable that a 13 year old
child, presumably unaware of the irrationality of human sexual
urges
(see Kruger; Hiemstra’s Criminal Procedure, page 24–9),
would invent an account of inappropriate touching taking
place in the
circumstances she described. She would anticipate that the presence
and such close proximity of witnesses (her friends)
would lead to her
story being disbelieved. Placing a false account of inappropriate
touching in, for instance, the room in which
the complainant
confronted the appellant the next day, would have been a more obvious
course to follow.
[53] In the circumstances I am
satisfied that the magistrate was correct in accepting the
complainant’s version of events.
That of the appellant was
rightly rejected as false beyond doubt.
[54] The offence created by s 18 (2)
(b) of the Amendment Act is a new one in our law. Before the
Amendment Act came into operation
Satchwell J in S v M
2007 (2) SACR
60
(W) para [37] said that grooming “involves an aspect of
deceptive trust created by the offender and manipulation of the child
by the adult”. In R v Legare
[2009] 3 SCR 551
Fish J, dealing
with the offence created by the Canadian Criminal Code which
prohibits the use of computers to communicate with
underage persons
for the purpose of “facilitating” the commission of a
secondary (sexual) offence, said this concerning
the concept of
“facilitating”.
“In this context, “facilitating”
includes helping to bring about and making easier or more probable –
for
example, by “luring” or “grooming” young
persons to commit or participate in the prohibited conduct; by
reducing their inhibitions; or by prurient discourse that exploits a
young person’s curiosity, immaturity or precocious sexuality”.
[55] It seems to me that s 18 (2) (b)
of the Amendment Act strikes at two forms of adult misconduct. There
is a difference between,
on the one hand, conduct with the intention
to “encourage or persuade” a child to perform a sexual
act; and, on the
other, conduct with the intention to “diminish
or reduce any resistance or unwillingness” on the part of the
child
to engage in a sexual act. It may be an answer to the first to
say that “I would not have done it” and therefore lacked
intention, but not to the second. In argument counsel for the
appellant aptly described the second phenomenon as the “erosion
of resistance”. Manipulation of a child’s sexual psyche
by an adult for his or her own amusement or sexual diversion
is
harmful conduct which may have far reaching consequences for the
child, even if the adult has no intention of ultimately performing
any overt sexual act with the child.
[56] The conviction on count one was
not challenged upon the basis that, if the complainant’s
evidence was accepted, it did
not establish that the appellant had
the intention required by s 18 (2) (b) of the Amendment Act. In my
view the decision not
to challenge this aspect of the case was
correct. The appellant must have understood that, within the
framework of the relationship
that had developed between him and the
complainant, a private and intimate explanation in full detail of
the type of sexual activities
he explained to her would have the
effect of reducing her inhibitions and of diminishing a 13 year old
girl’s natural resistance
or unwillingness to indulge in a
sexual act with the person with whom such intimacies were shared.
The episode of touching which
followed a little later removes any
residual reasonable doubt as to whether the appellant’s
intention fell within the section
under which he was charged.
[57] In the circumstances the appeal
against the conviction on count 1 cannot succeed.
[58] Turning to count 2, the conviction
of common assault is based on the incident of inappropriate touching
already dealt with
extensively above. On appeal the State was not
inclined to support the conviction, substantially because of the
close connection
between that incident and count 1.
[59] The following was said in S v
Maneli
2009 (1) SACR 509
(SCA) para [8] on the subject of improper
duplication of convictions.
“To determine whether there has
been an improper duplication of convictions the courts have
formulated certain tests. However,
these tests are not equally
applicable in every case. One such test is to ask whether two or
more acts were done with a single
intent and constitute one
continuous criminal transaction. Another is to ask whether the
evidence necessary to establish one crime
involves proving another
crime.”
[60] It seems to me that it is fair to
conclude that the incident of inappropriate touching was a
substantial element of the State’s
case in proving the
requisite intention for a conviction on count 1.
[61] If that approach is perhaps
technically deficient, it does seem that fairness calls for the
appellant to be allowed the benefit
of accepting that the conviction
of common assault is in fact a duplicate conviction. Concerning the
rules applicable in these
cases the majority judgment in S v
Whitehead and Others
2008 (1) SACR 431
(SCA) para [35] had this to
say.
“They are simply useful practical
guides and in the ultimate instance, if these tests fail to provide a
satisfactory answer,
the matter is correctly left to the common
sense, wisdom, experience and sense of fairness of the court.”
[62] The appeal against the conviction
on count 2 must accordingly succeed.
[63] It should be mentioned that it is
not at all clear that the charge sheet relating to count 2 was one
which qualifies under
s 261 (2) of the Criminal Procedure Act as a
charge of sexual assault “as contemplated in section 5”
of the Amendment
Act. If it was not, then common assault was not a
competent verdict. There is no need to decide that issue.
In the result, the following orders are
made.
1. The appeal against the conviction
and sentence on Count 1 (sexual grooming) is dismissed. The
conviction and sentence are confirmed.
2. The appeal against the conviction of
common assault on Count 2 is upheld, and that conviction is set
aside, together with the
sentence of a fine of R1000 imposed in
respect of it.
OLSEN J
HENRIQUES J
V NAIDOO AJ
Dates of Hearing: TUESDAY, 14 APRIL
2015
TUESDAY, 11 AUGUST 2015 (Full Court
constituted in terms of s14(3) of the Superior Courts Act.)
Date of Judgment: : FRIDAY, 21
AUGUST 2015
For the Appellant : Mr R Mohamed
Instructed by: PETER NAICKER
ATTORNEYS
Appellant’s Attorneys
Suite 911 Salmon Grove Chambers
407 Smith Street
Durban (Ref.: Ms Choudree)
(Tel No.: 031 – 3072651) )
For the State: Ms S Senekal & Ms
Jacobs
Instructed by: Director of Public
Prosecutions
Respondent’s Attorneys
3rd Floor
301 Church Street
Pietermaritzburg
(Ref.: Ms S Senekal / Ms Jacobs)
(Tel.: 031 – 3345114 / 033
– 845 4400)