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
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO.: CC 37/2023
In the matter between:
THE STATE
and
[P... ] [J... ] M[...]
JUDGMENT
GQAMANA J
Introduction
[1] The names of the accused and some witnesses will not be disclosed, due to
the nature of the charges and their ages. T he accused faces more than 700 charges
relating to inter alia, unlawful possession, creation, production, procuring and
transactions facilitating distribution of child pornography in contravention of section
24B (1) (a), (b), (c), (3) of the Films and Publ ication Act, human trafficking, in
contravention of sections 4 (1), 7, 8(1)(c), (d), 10 (l)(b) and (c) of the Prevention and
Combating of Trafficking in Persons Act 7 of 2013, rape, in contravention of section 3
of the Criminal Law (Sexual Offences and Rel ated Matters) Amendment Act 32 of
2007, sexual assault, in contravention of section 5 (1) Act 32 of 2007, sexual
exploitation of children, in contravention of section 17 (1), (3), (a), (4) of Act 32 of
2007, sexual grooming of children, in contravention of section 18 (1) (c), (2) (b) of
Act 32 of 2007, exposing of children to child pornography, in contravention of section
19 of Act 32 of 2007, displaying of child pornography, to persons who are mentally
disable, in contravention of section 25 of Act 32 of 2 007, using children for or
benefitting from child pornography, in contravention of section 20 (1) (c), (2) of Act
32 of 2007, failure to immediately report a sexual offence against a child, in
contravention of section 54 (1) (a) of Act 32 of 2007 and besti ality, in contravention
of section 13 of Act 32 of 2007, as comprehensively set out in the indictment.
[2] The aforesaid charges were allegedly committed over an extended period
between 2015 to 01 September 2022. The complainants/ victims were the accused 's
minor children who were at all the relevant times herein resident in Paradise Beach,
Jeffrey's Bay at the accused's house. Their mother and the accused were in a
cohabitation relationship.
[3] The accused pleaded not guilty to all the aforementioned ch arges and
tendered no plea explanation. However, the accused made certain admissions in
terms of section 220 of the Criminal Procedure Act 51 of 1977 as set out in detail in
exhibit "A" read with the other exhibits Attached thereto.
[4] Number of witnesse s were called by the State and below herein I will
summarise their evidence in a chronological manner and not in the sequence that
they were called. The accused also testified for his defence.
The State's case
[5] The first witness was Constable Azenha, the initial Investigating Officer for
this case. Const Azehna interviewed the complainant [D... ] the accused's daughter,
on 31 August 2022. Pursuant to such interview, he applied for and obtained a search
warrant on 1 September 2022, from the magistrate in Humansdorp to search the
accused's house.
[6] On the same day he arrested the accused in Humansdorp and confiscated
from him a Samsung Note 5 cellular phone. The accused stepson [R] was also
arrested and his cellu lar phone was confiscated by the police. Both cellphones were
handed over to Warrant Officer Opperman together with the password of each phone.
[7] The search warrant was executed the same day and a number of devices
including two hard drives, cell phones , PC and USBs were confiscated. After the
arrest of the accused, a forensic report was received from W/O Opperman pertaining
to the accused's cellphone. Further, the recordings that were found in the accused
phone was transcribed, such recordings include a phone call made by the accused
to the prosecutor Vicky Rossouw. The transcribed recordings were admitted as true
and correct and were handed in marked exhibits "N" and "O". Furthermore, a
WhatsApp chats between [R... ] and the accused was exported from [R ... ]'s phone.
The cellphone print out was admitted and handed in as exhibit "NL". The chat
included reference to nude photos of the complaint [D... ], as well as those of Ms
[N... ]. There were also photos found from [R... ]'s phone that were sent from th e
accused's phone.
[8] A second search warrant on 1 December 2022 pursuant to information
received from the accused minor child son [J... ]. In the course of the execution of
the second warrant, some devices were found hidden in the ceiling at the accused 's
house. Such devices were also handed over to the forensic expert Mr Johan Classen
in Pretoria for purposes of extraction of the electronic data. A working copy of the
various devices was given to Const Azenha for him to tag the relevant information in
order for Mr Classen to complete his forensic reports. Const Azenha exported the
images found from some of the devices which he considered constitute child
pornography and handed them to Mr Murendeni, an official from the Films and
Publication Board, in ord er to certify such images which could be classified as child
pornography. The report confirmed that those images constitute child pornography.
The affidavits deposed to by Mr Murendeni and the annexures thereto were admitted
and handed in as exhibits 'L" a nd "M".
[9] Azehna's evidence in respect of the confiscation of the cellphone devices, the
exporting of the WhatsApp chats and the arrest of t he accused was not challenged.
Ownership of the PC that was in the main bedroom was admitted by the accused.
[10] The next witness was W/ O Opperman. He was involved in the execution of
the search warrants at the accused's place of residence and the confis cation of the
devices listed in paragraphs 10 to 14 of the section 220 admissions. The aforesaid
devices were properly sealed in forensic bags as evident in exhibits "H" and "J", the
photo albums. Further evidence was that he obtained information from the two hard
drives of the accused's PC and the Samsung note 5. The digital information from the
devices and the cellphone was not altered or tempered with. The witness identified
the photos that he had extracted from the accused's Samsung note 5, i.e. exhibit "S".
In addition, he testified about exhibit "U", the schematic presentation whereby he
found certain linkages pertaining to the classified child pornography that was found
on accused's cellphone device, the 640 GB and 160 GB hard drives that were
removed from the accused's PC.
[11] The main factual witness in relation to most of the counts was Ms [D...], the
accused biological daughter. It was her evidence that the accused introduced and
exposed her to pornography from an early age of 10 years. The accus ed would
watch pornography from his TV in his bedroom and also in his PC in her presence.
The PC would be left open on porn sites even when the accused goes to work. On
some occasions the accused would watch pornography in the presence of her
mother, or he r half -brother [R... ] and her younger siblings. When she was
approximately 11 or 12 years of age, the accused would touch her breasts and her
vagina. She vividly recalled an incident whereby the accused sucked her breasts
while they were watching 7 de Laa n TV program, at the time she was between ages
13 or 14 years. There were numerous occasions that the accused would touch her
legs and rub her vagina while watching TV. There was also an incident where the
accused said to her that he would insert his finge r in her vagina and that was said in
the presence of her mother. The accused stopped touching her breasts and vagina
when she was 15 years old. She also testified about an incident where the accused
licked her vagina. She also mentioned incidents of sexual violation and rape by her
half-brother. On some occasions the accused was present and would take photos
using his phone of such sexual acts. The accused also gave instructions in respect
of sexual positions that she and her half -brother must perform. She also mentioned
an incident when she was approximately 14 years wherein, she was forced to
commit fellatio on the accused in the presence of her half -brother. Her half -brother
also raped her on her fifteenth birthday, but the accused was not present on this
occasion. That was not the only rape incident, because her half -brother again raped
her at Joshua's house, but she never reported such incident to the police.
[12] There were also incidents where the accused would take photos of sexual
acts between herse lf and her half -brother. The accused would sometimes record
such incidents. She was alerted by her younger brother [J... ] that her photos were
posted on the porn sites by the accused.
[13] She also gave evidence about the accused taking photos from his P C of her
seated on top of her half -brother and where she was also sucking his penis. She
also testified about her nude photos that she had forwarded to the accused on his
instructions after he had found out that she had sent such photos to her boyfriend.
She also mentioned that she reported to Ms Jobse that her half -brother had raped
her. In addition, she also made a report of the rape incident by her halfbrother to her
aunt Louisa, but she did not implicate the accused. She feared that no one would
believ e her if she were to implicate the accused. Pursuant to her report about her
half-brother, the latter was kicked out of the house and went to reside with his
maternal grandmother. Although he was no longer welcomed at their house, but it
was as business as usual. She confirmed that she was taken and examined by Dr
Maritz on 25 January 2021 as per the J88, exhibit "E" which was admitted as true
and correct.
[14] Her younger brother [J...] informed her that the accused was warned about
the possible search th at the police were to conduct at their house. The witness also
mentioned that her mother reminded her that what happens in their house must
remain internal. She further testified that the accused also warned her about possible
investigation by the police a nd that she should not say anything to them. Despite
taxing and lengthy cross examination, the witness was unshaken and refuted the
accused's propositions put to her that he denies that he had sexually abused her.
[15] The report that her half -brother h ad raped the complainant [D ...] was
confirmed by the witness Ms Jobse and also Ms Wentzel.
[16] The accused's minor son [J... ] also testified. His evidence was that he was
taught from the age of 10 years about the process of hacking by the accused. The
accused informed him that it was the family business. His evidence was that users
would be able to view the porn sites on the accused's shop and purchase those sites
that that they find interest on and payment would then be effected into the accused's
PayP al account. The witness also had a PayPal account which was used as a
backup, but all the payments to his account would eventually go to the accused. He
also testified that the accused had pornography of naked women on his computer
screen. He also saw nude photos of her sister [D... ] on the accused's computer. His
evidence was also that the accused had encrypted files on his computer. He testified
that the accused built up computers. He mentioned that although his half -brother
was kicked out of their house , but often he would come and sleep over at their house.
He also testified about the instructions given to him by the accused that he must hide
certain items because of the possibility that the police were investigating the accused
and his hacking.
[17] The other witness was Ms [B... ], she was 34 years of age but due her mental
capacity of 6 -9 years old child, her full names would also not be disclosed. Her
evidence was that the accused would watch "sex movies" on his computer. She was
aware that the accu sed was also selling pornographic videos online and was getting
money for that. She also testified about her watching an Afrikaans porn. She also
mentioned that she saw the accused having sex with the family dog. It was disputed
in cross examination that t he accused had sex with the dog. In addition, it was put to
her that the age restriction on the Afrikaans porn was 16.
[18] The accused's partner Ms [A.. N... ] testified and confirmed that she was
residing at the accused's house in Paradise Beach with he r children. She confirmed
that she pleaded guilty for failure to report a sexual offence in respect of her minor
daughter and for defeating the ends of justice. Her daughter [D... ] had reported to
her that the accused fiddled with her, but she never confr onted the accused about it
because she wanted to protect her children and had no alternative accommodation.
She was also scared of the accused as the latter would often yelled at her. Her
evidence was also that the accused's PC would be on the whole day on pornography
even in the presence of her minor children. The accused would watch adult and child
pornography. She also confirmed that she had sent her own nude photos to the
accused. She was also aware that the accused locked her daughter and [R... ] in th e
room and would at times take the key with him. She further testified that the accused
saved his pornography on the hard drives. She disavowed any knowledge about the
accused having sex with the family dog. It was denied in her cross examination that
the accused's PC was always on pornography sites.
[19] [R... ] testified that he was initially charged together with the accused but his
trial was separated and he pleaded guilty to rape of his half -sister. He is the
accused's stepson and was also residing wi th them at the accused's house in
Paradise Beach. He confirmed that they were exposed to child pornography by the
accused from a very young age. They would often watch pornography in the
accused's bedroom. His evidence was that he was at the age of 8 year s when the
sexual acts involving her sister [D... ] started. He mentioned that the accused would
lock him and her sister in the room and would be intimate with them. He also
mentioned that he instructed him and her sister to perform sexual acts, and he wou ld
take videos of same. Further the accused had also instructed him and her sister to
perform sexual acts including '69 position' and would take photos of such either
using his phone or the webcam on his computer. He was also instructed by the
accused to f orce his half -sister to commit fellatio with the accused and he took
photos of such using the accused's phone. Accused instructed him to forward to him
nude photos of his girlfriends. Regarding the rape incident at Joshua's house, his
evidence was that he was instructed by the accused to sleep over at that house, to
have sex with her half -sister and to take video and photos of such acts and to send
same to him. He also confirmed the chat between him and the accused as contained
in exhibit "N". The accused h ad also sent to him the nude photos of his mother. The
accused and his mother instructed him to keep quiet on whatever happens in the
house. He also testified about the voice note that he had received from the accused
and that the same voice note was playe d to his sister. He also mentioned that the
accused has his own blog where he used to sell pornographic sites and was also
assisted by his son [J... ] and the proceeds of such sales were paid into the
accused's PayPal accounts.
[20] The State also led ev idence of Col Kirsten Clark, a psychologist in the
employment of the SAPS. Her evidence and her reports, i.e. exhibits " O2" and "Q"
form part of the admissions in terms section 220. She confirmed her findings that
both the accused's daughter and son that g ave evidence in this trial were groomed
and exposed to pornography from an early age. Furthermore, the accused's
daughter [D] was also sexually abused.
[21] To insulate its case on the extraction of the data on the various devices that
were confiscated fr om the accused and his house, the State led the expert evidence
of Mr Johan Claasen, a senior criminal investigator and a computer forensic analyst
employed by the United States Department of Homeland Security stationed at
American Embassy in Pretoria. His forensic report was handed in as exhibit "K"
together with the annexures thereto. It forms part of the exhibits that were admitted
by the accused in terms of section 220. His additional report is also contained in
exhibit "W". Much is said about the latte r in this judgment the content and the
importance of such reports in relation to the charges herein. I now tum on to
summarise the defence evidence.
Accused's evidence
[22] The accused was the biological father of the complainant [D... ] and [J... ]. He
was in a cohabitation relationship with the mother of his children Ms [A... N... ]. All of
them as well as his stepson were residents at his house in Paradise Beach. The
witness [B... ] also resided with th em.
[23] His evidence was that he was arrested on 1 September 2022 at Humasdorp
by Const Azehna. His cellphone, a Samsung note 5 was confiscated by the arresting
officer. He also gave the arresting officer his PIN code of his phone. On both
occasions he w as not present when the police searched his house. His defence is
that of denial. He testified that he was shocked when he heard the evidence of her
daughter because they had a good relationship. He was a present father to his
children and would often assi st her daughter with her school homework. Initially he
also had a good relationship with his stepson. But that deteriorated due to his
stepson's behavior. He described his stepson as the "Prince of Darkness".
[24] Prior to his arrest, he was employed as a technician and also conducted a
side business wherein he was advertising on facebook newsletters. Updating of his
facebook page on his computer was time consuming and because of that, he had no
time to watch pornography.
[25] He admitted that there was a PC in his main bedroom, but it had no password
and accordingly it was readily accessible to any person at his house. He even
referred to occasions where his stepson and his friends would spend time on the PC.
In addition, he also mentioned that his son [ J....] also had access to that PC. He
denied that he has ever downloaded pornographic material on his PC, nor that he
had exposed his children to pornography.
[26] He denied that he has ever instructed his stepson to perform sexual acts with
his daughter and that he took photographs of such acts.
[27] He admitted that he was aware of the report that his stepson had raped his
daughter, but he did not report same. His defence to that was that, he called the
prosecutor Vicky Rossouw for an advice and on the basis of the information from her,
he explained the pros and cons to his daughter of reporting such incident and his
daughter elected not to open case against her half -brother.
[28] He also denied that he had instructed his stepson on the voice note that the
latter must have sex with his daughter. The allegation that he had sex with his dog
was also denied. He admitted that [B...] stayed at his house, but he denied that she
was exposed to pornographic material.
[29] He was aware that [B....] was mentally disabled, but he admitted that he had
put on the program 'sex in Afrikaans' for his partner and [B... ] to watch.
[30] He also denied that he had locked up his daughter and his stepson in a room.
His evidence was that there were no keys to lock the rooms. He also mentioned an
extra -marital relationship that his partner had and that he had informed her to stop it
or otherwise he would evict her from his house.
[31] He mentioned that he was a good father to his children and a disciplinarian.
His evidence w as that his daughter was influenced by her home schoolteacher,
Odette to lay criminal charges against him. In support of his suspicion, he testified
that soon after his arrest his daughter had tattoos and piercing, something that she
had aspired but he wou ld not allow her to do.
[32] In cross examination, the prosecutor had no difficulty in exposing
inconsistencies on his version. Furthermore, some of his evidence was never put to
the State witnesses. He also testified that his stepson after he was kicked out of his
house he threatened him that he will ruin his future.
[33] He testified that he spoke to B […] and mentioned to her that he suspects that
his stepson is sexually abusing his daughter.
Discussion
[34] It is trite that in a criminal trial the on us is upon the State to prove the guilt of
an accused person beyond reasonable doubt.1 Equally trite is the principle that an
accused person should be acquitted if his evidence is reasonably possibly true.
[35] Although the onus is on the State, but in R v M lambo2, Malan JA said the
following in respect of the standard of prove required;
1 S v V 2000 (1) SACR 453 (A).
2 1957 (4) SA 727 (A)at 738 B.
'there is no ligation on the Crown to close every avenue of escape which may
be said to be open to an accused. It is sufficient for the Crown to produce
evidence by means of which such a high degree of probability is raised tha t
the ordinary reasonable man, after mature consideration, comes to the
conclusion that there exists no reasonable doubt that an accused has
committed the crime charged'.
[36] In the analysis of the evidence, the court is required to evaluate the evidence
before it in its totality and judge the probabilities in the light of all the evidence, and
should not consider evidence in a compartmentalised manner.3
[37] Furthermore, in S v S ,4 the Supre me Court of Appeal held:
'A court does not look at the evidence implicating the accused in isolation to
the determine whether there is proof beyond reasonable doubt, nor does it
look at the exculpatory evidence in isolation to determine whether it is
reasonably possible that it might be true. The correct approach is set out in
the following passage from Mosephi and Others v R LAC (1990/1984) 57 at
59F/H: The question for determination is whether in the light of all evidence
adduced at the trial, the guilt of the [accused] has been established beyond
reasonable doubt. The breaking down of a body of evidence into component
parts is obviously a useful guide to a proper understanding and evaluation of it.
But in doing so, one must guard against a tendency to fo cus too intently upon
the separate and individual part of what is, after all, a mosaic of proof Doubts
about one aspect of the evidence led in a trial may arise when that aspect is
viewed in isolation. Those doubts may be set at rest when it is evaluated
again together with all the other available evidence. That is not to say that a
broad and indulgent approach is appropriate when evaluating evidence. Far
from it. There is no substitute for a detailed and critical examination of each
and every component in a body of evidence. But, once that has been done, it
is necessary to step back a pace and consider the mosaic as a whole. If that
is not done, one may fail to see the wood for the trees .'
3 S v van der Meyden 1999 (1) SACR 447 (W).
4 [2012] ZASCA 85.
[38] It will be prudent for me to quickly dispose of the less conte ntious count, i.e.
Count 727, relating to the alleged rape of the accused's daughter. Counsel for the
State conceded that accused's daughter gave no evidence about this incident and
accordingly the accused stands to be acquitted on this count. In light of such
concession, I will say no more about this count.
[39] In respect of the charges of production, possession, procuring, facilitating and
distribution of child pornography and exposing of children to pornography, the State's
evidence of the forensic exp ert Mr Classen is vital. It was Classen's evidence that
large amount of pornographic material was extracted from various devices that were
handed over to him by Const Azehna. Those devices were confiscated from the
accused's house during the search by the police as per the evidence of both W/ O
Opperman and Const Azehna. The cellphone device was confiscated from the
accused at the time of his arrest. The chain evidence in respect of the collection,
handling and submission of all the devices that were confisc ated was not challenged.
The accused's defence was that he had no knowledge of the presence of such
pornographic material on his PC because it had no password and it was accessible
and also used by his son [J....] and his stepson. He made mention of an inc ident
where he saw his stepson and his friends at his house, and they were on his
computer the entire time. This crucial version was, however, not put to his stepson
during his cross -examination.
[40] All the State factual witnesses testified that, the ac cused would spend most of
his time on his PC watching pornography. The evidence of his daughter was that the
accused would watch the pornography with her in his bedroom and sometimes in the
presence of her other siblings. Her evidence in this regard was co rroborated by her
mother and her half -brother.
[41] His daughte r gave a clear and consistent evidence not only about the
pornography on the accused's computer, but also her exposure to it from a young
age. Despite a lengthy and strenuous cross examination, she maintained her version
with calmness. She also gave clear evidence about the rape incidents by her half -
brother and also the accused. She also explained herself the reasons for not
implicating the accused in her report to Louisa. Her explanation to me was
understandable in the circumstances. The accused was her f ather and her mother
had instilled a culture to her from a very young age to remain mute and not disclose
what was happening at their house. [D... ] was also informed by her brother [J...] that
the accused was also selling pornography to his clients in exc hange for payment
with money. Her evidence on this point was corroborated by her brother [J ]. Her
mother also confirmed that the accused was selling porn on his sites.
[42] What also convinces me that the accused had knowledge of the pornography
on his hard drives, was his instruction to his son [J ] that, the latter must hide some
of the devices when the accused was alerted by his partner that the police were
investigating him. An innocent person, oblivious of pornographic material on his
devices would not have given such instructions to his son. It is common cause that,
when the accused's house was searched on 01 December 2022, som e of the
devices were found hidden and pornographic material was also found in some of
those devices. His son also testified that the websites he would often hack were
mostly pornography. He mentioned that the users would view the sites on the
accused's sh op and would click on the sites that they wanted to buy and payment for
that would be then made into the accused's PayPal account.
[43] Even the witness [B... ] testified that the accused would often watch 'sex
movies' (pornography) on his computer. This also negates the accused's defence
that he had no knowledge of the pornography on his devices.
[44] His stepson also testified that they were shown pornography by the accused
on his computer of men and women being intimate and also of female persons
having sex with animals.
[45] Counsel for the accused submitted that I should approach [R... ]'s evidence
with caution because he is an accomplice and he had struck a deal with the
prosecution regarding sentence on the charges against him related to this matt er.
Indeed [R... ] was an accused in this matter, but his trial was separated and he
pleaded guilty.
[46] In S v Hlaphezulu & Others5, Holmes JA, said the following about the reasons
of approaching the testimony of an accom plice with care that:
'First, he is a self -confessed criminal. Second, various considerations may
lead him falsely to implicate the accused, for example, a desire to shield a
culprit or, particularly where has not been sentenced the hope of clemency.
Third, by reasons of his inside knowledge, he has a deceptive facility for
convincing description - his only fiction being the substitute of the accused for
the culprit.'
[47] Before convicting an accused person on the evidence of an accomplice, the
court mus t satisfy itself of the merits of the accomplice and the demerits of the
accused as a witness. [R... ] has already been sentenced and as such there is no
hope of clemency for him. His evidence was also corroborated by the other State
witnesses, namely, his mother, his half -brother [J... ] and his half -sister in relation to
the accused's knowledge that there was pornography on his computer. In his
evidence he also touched to the fact that the accused exposed them to pornography
from young age and that the ac cused was also involved in selling porn on his sites.
[R... ] was an impressive witness and I'm satisfied that his evidence is reliable and
was corroborated by other State witnesses.
[48] In respect of the charges for rape, sexual assault, sexual grooming and
sexual exploitation, the accused's daughter gave clear and detailed evidence of the
various incidents when the accused raped, sexually assaulted and exploited her.
There was also evidence that the accused arranged for her to meet with her half -
brother so that the latter would perform lewd sexual acts with her. She testified about
an incident whereby the accused licked her vagina. She also testified about the
incidents that the accused instructed her and her half -brother to perform certain
sexual positi ons while he was either taking videos or photographs of such incidents.
[R... ] also corroborated most of her evidence including the incident where [D... ] was
forced to commit fellatio on the accused. Insofar as there were contradictions
between their evi dence on this point, such contradictions were minor and immaterial
5 1965(4) SA 439 (A) at 440D -E.
in the broader context of the evidence before me. Col Clark, the psychologist from
the SAPS also confirmed her findings that [D... ] was sexually groomed and abused
over a long period of ti me. The content and correctness of the reports of Col Clark,
exhibits '02' and 'Q' were admitted by the accused in terms of section 220.
[49] The accused denied all these incidents. In his suspicion suspects that her
daughter was influenced by her home sc hoolteacher Odette to open a case against
him. He painted a bad picture of both Odette and her boyfriend that, they were using
drugs and were shady characters. He also mentioned that he had resisted and
refused to let her daughter to have tattoos but as so on as he was arrested, he saw
her that she had tattoos. There was so much overwhelming evidence against the
accused. On credibility the accused was evasive and would often give long -winded
answers even on simply questions by his own counsel. In addition, h e had a
tendency of shifting blame on others on each occasion he finds himself cornered in
cross examination. He was also argumentative and less truthful.
[50] With regards to the charges for failing to report a sexual offence against
children, it was cle ar from the evidence of Louisa that the accused was aware that
his stepson had raped his daughter. The accused's partner also corroborated that
evidence. [D...] also testified about her report to Louisa. The accused's version was
that, he called the prosec utor Vicky Rossouw and spoke to her about this incident as
well the sexual molestation of his other children by his stepson. Despite such
discussions with the aforementioned prosecutor, he did not report such incidents to
the police. On his own evidence th ere was no valid defence from not reporting such
incidents. Act 32 of 2007 creates a duty to report sexual offences committed with or
against children.
[51] In relation to the charges of exposing or displaying child pornography to
children and also person s who are mentally disabled, the evidence of the accused's
daughter painted a graphic picture that, watching pornography was the order of the
day at the accused's house. Her evidence on that score was corroborated by her
mother and by both her brothers. Fu rther exhibits 'K', 'L', 'M' and 'W' bear testimony
to the large amount of pornographic material which was extracted from the accused's
devices. Some of the images were classified as child pornography in terms of the
report of Mr Murendeni as I have mentio ned earlier on above. The witness [B... ] also
testified that the accused caused her to watch porn called 'sex in afrikaans'. It is
common cause that [B... ]is mentally disable and the accused was also aware of that.
The accused confirmed in his evidence t hat he had put on the program which
comprised of sex episodes and it was shown to [B... ]. The nature of this program as
described by both the accused and [B... ] falls within the description of pornography
as defined in Act 32 of 2007.6
[52] In relation to the human trafficking and the related charges, these are all
statutory offences, but the onus remains on the State to prove them.
[53] Section 4 of Act 7 of 2013 states that:
'4 (1). Any person who delivers, recruits, transports, harbors, sells, exchange,
leases, or receives another person within or across the borders of the
Republic, by means of -
(a) a threat of harm,
(b) ……. ;
(c) The abuse of vulnerability;
(d) ……. ;
(e) ……. ;
(f) ……. ;
(g) ……;;
(h) ……. ;
(i) ……. ; (those left blank are irrele vant herein) or
(j) The direct or indirect giving or receiving of payments, compensation,
rewards, benefits or any other advantage, aimed at either the person or an
immediate family member of that person or any other person in close
relationship to that person, for the purpose of any form or manner of
exploitation, is guilty of the offence of tr afficking in persons.'
6 Section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007.
[54] Counsel for the defence argued that firstly there was no evidence of trafficking.
Secondly the trafficking counts amount to splitting of charges which would result to
duplication of convictions. On the other hand, the State sub mitted that the evidence
shows that the accused delivered [D...] to stepson when he allowed her to sleep over
at Joshua's house because he had arranged with stepson to sleep over at the same
house with the purpose of the latter to sexual exploit his daught er.
[55] The word "deliver" is not defined in Act 7 of 2013, and neither of the counsel
referred me to any authority on the meaning of 'deliver' in the context of this Act. The
literal meaning of 'deliver' is to give or hand over something to somebody's c are or
control. The process of human trafficking has several phases, inter alia , the act, the
means and the purpose. In general, it starts off with the delivery or recruitment of the
victim followed by moving the victim to a place where s/he will be exploi ted. The
purpose of moving the victim is to alienate her to ensure that she becomes
vulnerable and easier to exploit. The actual exploitation is not required to be present
in order for an accused to be convicted of human trafficking.
[56] Abuse of vulnera bility for purposes of section 4(1) , means an any abuse that
leads to a person to believe that s/he has no reasonable alternative, but to submit to
exploitation7.
[57] The complaint [D...] was a minor and a female person. Evidence as confirmed
by [R…] and the transcribed recordings of the conversation between him and the
accused proves that an arrangement was made by the accused to ensure that the
victim [D …] sleeps over at Joshua's house for purposes of [R …] to sexually exploit
her and to take photos of such acts and to send them to the accused. It means the
accused alienated her and delivered her to his stepson in order to ensure that she
becomes vulnerable and easier t o exploit. [D...] gave evidence that his half -brother
raped her on that particular night. The accused and his partner came and fetch her
and his half -brother at Joshua's house. The accused denied this incident. However,
the objective evidence of the transc ribed recordings of his conversation with his
stepson negates his defence. In addition, there was evidence that naked photos of
7 S v Ayuk &others (46/2019) [2024 ] ZAWCHC, 2024 (2) SACR 609 (WCC) (24 May
2024).
[D...] and other unknown minor children and female persons were extracted from the
accused's devices. The evidence of accused's son [J... ] was that pornography would
be downloaded into the accused sites and buyers would browse and click and buy
those sites that they found interesting and then payment would be made to the
accused's PayPal account or sometimes to his account, but at the end all that money
will go to the accused. [R... ] also corroborated that evidence. Even the accused
partner, Ms [A..N... ] confirmed it. Considering this evidence in totality, the accused
must be found to have committed the offences of trafficking in terms of sections 4(1),
7, 8(1)(c) and (d) of Act 7 of 2013.
[58] However, in relation to the charges for contravention of section IO{l)(b) and (c)
of Act 7 of 2013, i.e. counts 724 and 725, my careful analysis of the evidence as a
whole in the context o f this case, it would amount to a duplication of convictions to
convict the accused on these charges.
[59] In relation to the charge of bestiality, [B... ] was a single witness and in terms
of section 208 of Act 51 of 1977, an accused person may be convic ted on the
evidence of a single witness for as long as the court is satisfied that the evidence is
clear and satisfactory in all material respects.8 The manner in which she described
this alleg ed incident was not clear to me. Fatally to the State's case, although
according to [B... ] the alleged incident was reported to the accused's partner, Ms [A...
N... ], but the latter disavowed any knowledge about it. The fact that pornographic
material of female persons having sex with animals were found on the accused's
devices, is not corroborating evidence. I still have doubt in my mind that the accused
committed this offence and that the benefit of doubt must weigh in favour of the
accused.
[60] On cr edibility, I have already indicated above that the State witnesses
impressed me as honest and reliable. They corroborated each other on most issues.
The evidence of the factual witnesses was also corroborated by the large amount of
pornographic material wh ich was found and extracted from the accused's devices.
Where there were contradictions between some of their evidence such
8 Rugunanan v S (259/2018) [2020 ] ZASCA 166 (10 December 2020.
contradictions are not only minor and immaterial, but also understandable
considering the time that had passed since these incidents occurred. But at the end,
their evidence was remarkably good.
[61] Contrary to the State witnesses, the accused did not impress me as a credible
witness. He was evasive and argumentative at times. He was less truthful and
always shifted blame to others. His evidence was simply unbelievable and his
version is not reasonably possibly true and is rejected as false. Accordingly, that the
State has discharged the onus and proved the guilt of the accused beyond a
reasonable doubt.
Conclusion
[62] In the circumstances and for the reasons stated above, I find as follows:
1. Counts 4 - 714 (unlawful possession of pornography) - Guilty
2. Count 715 (unlawful creation and production of child pornography) -
Guilty
3. Count 716 (unlawful importing or pr ocuring of child pornography) -
Guilty
4. Count 718 (unlawful transactions facilitating and distribution of child
pornography) - Guilty
5. Counts 719 - 723 (human trafficking) - Guilty
6. Counts 724 and725 (contravention of section 10(1)(b) and (c) - Not
Guilty
7. Count 726 (rape) - Guilty
8. Count 727 (rape) - Not Guilty
9. Count 728(rape) - Guilty
10. Counts 730 and 73 1(sexual assault) - Guilty
11. Counts 736 -738 (sexual exploitation of children) - Guilty
12. Counts 739 and 741(sexual grooming of children) -Guilty
13. Count 742 (displaying or exposing of child pornography or pornography
to children) Guilty
14. Count 743(displaying or exposing of chi ld pornography to a mentally
disabled person) - Guilty
15. Counts 744 and 745(using children for and benefiting from child
pornography) - Guilty
16. Counts 746 -748(failure to immediately report sexual offences against
children) - Guilty and
17. Count 756 (b estiality) - Not Guilty.
N GQAMANA
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the State : Adv I Cerfontein
Instructed by : Director of Public Prosecutions
Gqeberha
Counsel for Accused : Mr D Erasms
Instructed by : Legal Aid South Africa
Gqeberha
Heard on : 7, 8, 10, 20, 21, 22, 23, May 2024; 27, 28, 29, 30,
31 January 2025; 3, 4, 5, 6, 12, February 2025; 15
April 2025
Judgment delivered on : 22 April 2025