About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1991
>>
[1991] ZASCA 140
|
|
S v De Graaff (488/90) [1991] ZASCA 140 (27 September 1991)
CASE NO. 488/90
/ccc
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the
matter between:
DAVID BARRY DE
GRAAFF
APPELLANT
and
THE
STATE
RESPONDENT
CORAM
: NESTADT, F H GROSSKOPF et NIENABER
JJA
DATE HEARD
: 12 SEPTEMBER 1991
DATE DELIVERED
: 27 SEPTEMBER
1991
JUDGMENT NESTADT, JA
:
Appellant was convicted by a magistrate on
two counts of indecent assault. He was sentenced to pay a fine. In addition a
suspended
period of imprisonment was imposed. He unsuccessfully appealed against
his
2/
2.
conviction to the Cape Provincial Division. This is a further appeal against
his conviction, leave to do so having been granted by
this Court.
The
offences are alleged to have taken place during 1986. Appellant was at the time
a 26 year-old teacher at the Beaumont Primary
School in Somerset West. He taught
English to the standard three class. The two complainants were pupils of his.
One was Calvin Renda.
He turned twelve during September of that year. The other
was Grant Reichenberg. It would seem that he was of a similar age. Their
evidence was to the effect that on a number of occasions during the year in
question appellant felt or touched their private parts.
This took place in class
when they individually came up to the desk where appellant was sitting to have a
book marked or inspected.
Appellant then put his hand inside their pants and
handled their penis. It will be necessary in due
3/
3. course to canvas appellant's version in some detail.
Suffice it at this stage to say that in his evidence he denied that he committed
any offence. The trial court, however, held that the State had proved its case
and accordingly convicted appellant.
Before us, an able, wide-ranging and
detailed attack was made on behalf of appellant against the magistrate's
credibility finding.
The argument was tp the following effect:
(i) Having regard to the nature of the offence and the ages of the
complainants, the cautionary rule applied and it had not been satisfied.
(ii)
There are a number of material contradictions between the respective versions of
the complainants. They were
(a) Calvin testified that the assaults occurred "three to four times per
week...continuously
4/
4.
throughout the year". According to Grant, on
the other hand, they were "not very
often...(T)wice I think".
(b) Regarding the manner in which the assaults
took place, Calvin said . that
appellant put
his hand underneath his underpants from the
top of his
trousers. Grant's description was
that appellant felt his private part
by
putting his hand over his underpants from the
leg side of his (short)
trousers.
(c) Most important was that Calvin said that each
time the offence took
place, they sat on
appellant's lap (at his desk). Grant denied
this. He
said he never sat on appellant's
lap. His evidence was that he was
always
standing next to appellant when he put his
hand up his
pants.
5/
5. These contradictions, so it was submitted, cast
serious doubt on the reliability of the two complainants; indeed it was
impossible
to reconcile their two versions. (iii) It was inherently improbable
that appellant would act in the manner alleged in front of the
whole class
(consisting of some 23 pupils). It was also improbable that if the assaults were
as regular and blatant as Calvin testified,
no-one in the class reported the
incidents for a period of about two years. Nor apparently were they discussed
amongst the pupils
themselves or with their parents. (iv) The magistrate's
reasons for convicting appellant showed him to have been unduly critical
of
appellant. The contention was that insufficient allowance had been made for the
fact that
6/
6.
appellant was unrepresented at the trial; the fact that he was (in the words of
the magistrate) "educated" and that he "understood
the procedure in court" had
been over-stressed. Instead of, in
these circumstances, assisting
appellant in presenting his case, the magistrate had unjustifiably taken into
account appellant's failure
to properly put his version to the State witnesses
as well as the lack of clarity in his sec 115 statement and evidence-in-chief.
The magistrate should rather have drawn an adverse inference from the State's
failure to call other named pupils in the class in
support of complainants'
allegations. Indeed he should have called them himself. In the result, appellant
had not received a fair
trial. (v) Even on the State version, there was
insufficient
7/
7.
proof that appellant had the necessary
mens rea
to
commit the
offences. The argument is not without merit. Plainly, the cautionary rule
applied. This meant that there had to be some
satisfactory indication of
complainants' trust-worthiness. It cannot be said that the evidence of the two
State witnesses is beyond
criticism. The contradiction arising from whether
complainants sat on 'appellant's lap ((ii)(c) above) is an important one. And it
cannot be explained away on the basis that each witness was testifying as to his
own experience. One does get the impression that
Calvin was perhaps exaggerating
the case against appellant. He appears to be a somewhat precocious youth; he
refers in his evidence
to subjects like "child molestation" and "pervert(s) on
the loose". I am not impressed by the reason he gives for reporting the matter
(to a teacher and then to the police) only after
8/
8. the lapse of 2 years.
Regard must,
however, be had to appellant's evidence. As I read his sec 115 statement and his
subsequent cross-examination of Calvin,
appellant's initial defence was a denial
of the acts he was alleged to have committed. But his evidence paints a
different picture.
He conceded that he often corrected complainants' (and other
childrens') books or assignments 'whilst they stood next to him at his
desk.
Occasionally they even sat on his lap. He would then "play with them", ie, "I
would pinch them friendly...sometimes I (even)
tickle them..." He was just
trying to be "friendly and do spontaneous and natural actions". His evidence
continued:
"What do you think of Grant's evidence? Do you
think it was the truth? Do you agree with
everything that he said? Yes, Sir...
No, you just said to me now you never pinched them on their private parts
with malicious intention? --- That's right.
9/
9.
In other words, I think the logical deduction from that is that you did pinch
them on their private
parts? No, Sir, they could be jumping about.
What could be jumping
about? The pupils could
be jumping about.
So, you could have accidentally pinched them?
That's right, yes, Sir...
How can you pinch somebody accidentally on their private parts without your
hand being in close
proximity to their private parts? On their
upper leg, Sir.
On the inside of the upper leg? Ja...
So, you are
saying that the only time that you think that you could have pinched ahybody's
private parts was when you were busy pinching
them on the inside of their thighs
and they were jumping around that you now accidentally pinched
their private parts? Yes, Sir...
I didn't ever do it
intentionally...(I)t was accidental, the things that I did.
What things are
you talking about? Well, if I
had to pinch them, Sir, it was accidental
that I
ever pïnched their private parts...
With hindsight I look back at it
and I said to
you, I have calmed down a lot. I look back on the
incidents that occurred. I don't think they were
wrong in the sense that
they were indecent
assault.
Did you ever have the intention to fondle any
of
these two witnesses, fondle their private parts? -
-- No, Sir.
Although it could have happened accidentally?
Yes."
10/
10.
It seems to me that in the light of this evidence, appellant's argument loses
much of its force. What emerges is that pupils, including
complainants, did
comê up to his desk; that they sat on his lap; that he pinched them on the
inside of their thighs; and that
in the process he might have pinched their
private parts. In the result a lot of what complainants say is confirmed by
appellant.
And the issue between the State and the 'defence (besides appellants'
state of mind) was a relatively narrow one, viz, whether he
placed his hand
inside complainants' pants as alleged by them.
Now I do not find the magistrate's reasons for judgment to be entirely
satisfactory. For example, it is found that "(a)lthough they
contradicted each
other... it is not enough to totally reject their evidence". This is not the
correct approach. The correct approach
was whether their evidence was to be
accepted. The
11/
11.
magistrate states the issue to be not whether "these offences were committed
but (whether) it was the accused who committed them".
This is obviously not so.
Even so, I do not think that his acceptance of complainants' evidence can be
faulted. In.my view the unfortunately
worded excerpts from the judgment do not
amount to a material misdirection. This being so, we can only interfere with his
factual
findings if convinced that they "are wrong. I am not so convinced.
Complainants were regarded as "very good witnesses". The evidence
does not
reveal any apparent motive for them to have falsely accused appellant -
especially after the lapse of a lengthy period.
On the contrary, both
complainants seem to have been well disposed to appellant. They corroborate each
other on the crucial issue
of whether appellant put his hand in their pants and
touched their private parts. The only contradiction (which the magistrate was
alive to)
12/
12. of substance between them was whether complainants sat
on appellant's lap. Obviously, on this point, either Calvin or Grant is
wrong.
But I do not think their evidence is for this reason rendered unacceptable. As I
have indicated, appellant admitted that pupils
did sit on his lap. The
availability of other children to give evidence for the State was not
established. Having regard to complainants'
ages, the delay in reporting the
matter and the failure to discuss it, is not I think, a point of criticism. I
cannot agree that
the State version is improbable. Appellant might well have
thought that sitting behind his desk, the inserting of his hand into
complainants'
pants would not be observed by the class. He was obviously
unconcerned in having them sit on his lap. In my view this conduct, coupled
with
appellant admittedly having touched pupils on the inside on their thighs, lends
support to complainants' version. It shows
13/
13. that appellant had the opportunity to commit the
offences. I do not believe I am being unfair to him when I add that it also
shows
a certain inclination to commit the offences. It is surprising that a
teacher would cause a boy of almost twelve to sit on his lap.
I am not impressed
by appellant's reasons for his conduct. It does not seem to me to have been
"natural". Finally, there is the consideration
that appellant does not
'effectively deny the State case. I leave aside that he did not do so in his
evidence-in-chief. That may
have been due to ignorance of what was required of
him. But under cross-examination he concedes, as I have mentioned, the
possibility
that he accidentally pinched complainants' private parts. This too,
so it seems to me, gives credence to complainants' evidence rather
than
indicating appellant's candidness (as was argued). More importantly, there is
his acknowledgment that Grant's
14/
14. evidence was correct.
On a conspectus of the
evidence, I am satisfied that the magistrate was justified in finding that the
cautionary rule had been complied
with. Nor do I think that there is substance
in the complaint that appellant did not receive a fair trial. The only prejudice
he
suffered was from his answers to questions, not from any improper conduct of
the trial.
It was not in dispute that the handling of complainants' private
parts was an assault of an indecent character. This being so, the
remaining
issue is whether it was proved that appellant acted with the necessary
mens
rea
. This means that he must have intended not only to assault complainants
but to assault them indecently (
S vs Muvhaki
1985(4) SA 317 (ZHC) at 319
C-D;
Snyman
: Strafreg, 2nd ed, 487). In my opinion the only reasonable
inference to be drawn from the facts as deposed
15/
15.
to by complainants is that appellant had such intention. It is true that
Grant' s evidence may give a different
impression. He stated:
"He'd then start pinching your leg but and
then up onto your private parts but then I think
that it was just - I don't know, I don't think it
was anything meant...that he was doing anything on
purpose...
I didn't really think it was wrong...
But you say you don' t think his intention was
anything other than to give you punishment?
Yes. I don't think he intended anything else...
Do you think I ever had
sexual intentions in my
mind when I did it? No."
The court cannot be bound by this opinion. The objective
facts must be
looked to. On complainants' evidence, their
private parts were not handled by
appellant accidentally
when they were jumping around. On repeated
occasions
appellant deliberately inserted his hand in or under their
pants with the object of touching their private parts.
16/
16. The appeal is dismissed.
NESTADT, JA
F H GROSSKOPF CONCURS
CASE NO. 488/90
/RW
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the
matter between:
DAVID BARRY DE
GRAAFF
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: NESTADT, F H GROSSKOPF et NIENABER JJA
DATE HEARD
: 12
SEPTEMBER 1991 DATE DELIVERED: 27 SEPTEMBER 1991
1
JUDGMENT
NIENABER JA:
I have read but find myself in respêctful
disagreement with the judgment prepared by Nestadt JA.
In my view the
appeal ought to succeed. The evidence
before the trial court was simply too
thin and too
contradictory to sustain a conviction - not even on
what is
essentially an accusation of child molestation.
The appellant was a primary school teacher.
He was charged on two counts of indecent assault
"deurdat op of omtrent gedurende 1986 en te of naby Beaumont Skool in die
distrik Somerset Wes die beskuldigde wederregtelik en opsetlik
vir Calvin Rerder
[for which read "Renda"] onsedelik aangerand het deur sy privaatdele te
betas."
That was count 1. Count 2, relating to Grant
Rigkenheng (for which read "Reichenberg"), is couched in identical
terms.
These offences are alleged to have been committed in full view of a
class of approximately 23 boys and girls in the 11 to 12 years
age-group. It was
supposed to have happened in 1986 but a complaint about
2
the appellant's conduct was only mooted in 1988, two years later. That
complaint came from Calvin Renda. He had by then left the Beaumont
Primary
School. During a lecture at his new school about self-defence he became
frustrated, so he said, by the flippant remarks of
other pupils and promptly
decided to tell the teacher of his earlier experiences at his previous school.
Why his annoyance should
have caused him to do so was neither explored nor
explained. The appellant was eventually confronted, not, however, with the
incidents
in respect of which he was charged, but, so he stated during his plea
explanation, with something entirely different - that he had
exposed himself to
children under his charge during a school outing to Montagu. The appellant was
the school's swimming coach. Calvin
had apparently complained to his father that
the appellant had exposed himself in a change room when all that happened, so
the appellant
said, was that the whole group had changed in the change room
before proceeding to the hot baths. This episode, curiously enough,
was never
mentioned again, not by the appellant himself, either during the
cross-examination of Calvin
3
Renda, or during his own evidence-in-chief, nor by the
prosecutor during
the cross-examination of the
appellant. To the actual charges the appellant
pleaded
not guilty saying:
"I don't know where they originate from. I don't fondle anyone's private parts.
I have never intentionally fondled anyone's private
parts,
Sir."
The appellant was not represented at his
trial, at least not until after his conviction. This proved to be a serious
error of judgment
on his part, for the appellant was singularly naive and inept
in the conduct of his defence - for which, I may say, very little allowance
was
made by the magistrate.
The charges themselves were unhelpfully vague. They do not reveal whether the
prosecution proposed to rely on a single episode in
respect of each charge, or
whether it involved a prolonged course of conduct at different times and
locations; nor does it mention
how the offences were committed on each alleged
occasion.
A similar vagueness also characterised the only evidence led by the
prosecution, that of the two
4
complainants, Calvin and Grant. Their evidence over-
laps in the sense
that each professed to have witnessed
what happened to the other. And it was
here that an
astonishing disparity appeared between what each
said
happened to him and what each said he saw happen to the
other.
Calvin was 12 years old at the time. His
description of his experience can best be illustrated
by means of a series
of quotations from his evidence in
chief. He began by saying:
"And then the accused would tell us to bring our books forward to be marked and
then throughout the year he would sometimes make
us, during the week, sometimes
three/four times during the week, he would make us sit on his lap and then he
would stick his hand
in our pants and then he would feel
around..."
(The impression created by this passage,
especially the
use of the word "us", is that Calvin had not been
singled out by the appellant; what happened to him
happened to all of
them, in exactly the same manner.)
He proceeded:
"Then he would mark with his one hand and then he would make us sit on his lap
and then he would stick his hand in our pants and
he would feel our
penis."
5
Under cross-examination he elaborated, saying that appellant put his hand
into his pants "from the top".
He was asked why he allowed the appellant to
act in this manner and his reply was "At that stage, I wasn't aware that what he
was
doing was actually wrong."
Under cross-examination he reiLerated that the
fondling of his private parts took place whíle he was sitting on the
appellant's
knee and while the appellant was correcting his assignment. He was
not sure with which hand the appellant touched him. He did not
regard the
appellant's conduct, at the time, as wrong at all; indeed, he did not even think
of it as "sex".
That, then, is what happened to him. As to
what
happened to Grant, he said, in evidence-in-chief:
"He would also go forward to have his book marked and then he would also - Mr De
Graaff would also let him - make him sit on his
lap and also mark his book.and
at the same time, also feel around with his
penis.
COURT:
Did you see
that? Yes.
PROSECUTOR:
Could you see that Grant sat on
his lap? Is that right?
Yes.
6
What else could you see? Now, look, you've got to be very careful now because
all the Court is now interested in is what you physically
could see, not what
you maybe later heard or what was told to you but just
what you saw? No, that was exactly what I
saw.
COURT:
What was that?
PROSECUTOR:
Ja, what exactly - what could
you see? I could see that he was actually
physically putting his hand in Grant's pants and I could see that he was also
fiddling around.
So, in other words, you could see that
there was a hand in Grant' s pants and
that
this hand was moving around? Yes."
He was
asked how long each such incident lasted. His guess was between 2 to 3 minutes -
clearly it was not something that happened
in a trice.
The passage just
cited, particularly the repeated use of the word "also"., creates, at the very
least, the strong impression . that
the appellant's methods, according to
Calvin, were the same in both cases.
But Grant tells an entirely different
story, both as to what he experienced and what he observed -and according to him
it was also
the same in both cases.
7
He would go to the desk, he testified, where
the
appellant was seated and stand next to him, one and
a half metres or so away,
while the appellant corrected
his assignment. If he had made a mistake the
appellant
might slap him lightly - "as most teachers do" - or
pinch the
inside of his leg in a playful manner.
"He'd then start pinching your leg but . . . and then up onto your private parts
but then I think that it was just - I don't know,
I don't think it was anything
meant, anything or anything, that he was doing anything on purpose to do
anything like that or anything.
I don't think."
He
would be wearing shorts. The appellant would pinch him inside his pants but not
inside his underpants. This did not happen frequently
- perhaps twice during
1986.
He was asked:
"You say you think this pinching - why do you
think he would pinch your
private parts?
As punishment maybe. I don't know
really.
Would it hurt you? Not really
so
bad, just not ... a bit.
Do you think that the only reason why he
did this was to punish you?
Yes."
All of this would occur in full view of the
entire class. Indeed, sometimes there would be a queue
8
of boys and girls nearby at the desk waiting for their
assignments to be
corrected. He did not discuss these
incidents with anyone. And when he was asked why not,
his reply was:
"Because I thought it was just - I didn't think of it in any - like I just
thought he was friendly, funny - just like punishment
or something. I didn't
think like ...
Did you think it was wrong? I
didn't
really think it was
wrong.
Do you think it' s wrong
now? Well,
ja, I suppose.
Why? Because it is private parts
and
nobody is supposed to...
But you say you don't think his intention was anything other than to give you
punishment? — Yes. I don't think he intended
anything
else."
According to Grant what
happened to him
happened to Calvin. Nothing different. Calvin, like
him, would be standing
next to the appellant.
"And you say the boys were always standing
when they were by him? Yes, except for
when like he hit them or maybe ...
So they were never took in any other
position?
No.
They never sat on a chair next to
him or
something like that? No, not that ...
COURT:
Or on his lap? No.
PROSECUTOR:
Nobody ever sat on his lap?
Not that I know
of.
Are you quite sure about that?
Yes."
9
Under cross-examination he agreed that these were all "friendly incidents"
and that he did not think that the appellant ever had sexual
intentions in
mind.
In S v R
1977 (1) SA 9
(T), also a case
involving
allegations that the appellant in question
had committed acts of indecency
with several young
boys, Nicholas J declared at 11H - 12D:
"The general rule is of course that, where several counts are charged, the
evidence on each count must be examined separately as
if it were the only count
charged.
In respect of each count in the present case, the complainant concerned was a
single witness. It has repeatedly been said that,"
where the State relies upon
the evidence of a single witness, it is requisite to a conviction that the
witness evidence should be
clear and satisfactory in every material respect.
It is also well recognised that cases of sexual assault require special
treatment, because complaints of that kind are generally
difficult to disprove
and various consideratíons may lead to their being falsely laid. (R.v.W.,
1949 (3) SA 772
(A.D.) at p. 780). There has consequently grown up a rule of
practice, similar to that in accomplice cases, which requires recognition
by the
court of the inherent danger of relying on the testimony of the complainant in
sexual cases, and of the need for. the
10
exercise of some safeguard reducing the risk of a wrong conviction, such as
corroboration of the complainant in a respect implicating
' the accused or the
absence of gainsaying evidence from him, or his mendacity as a witness.
(S.v.Snyman,
1968 (2) SA 582
(A.D.) at p. 585). There is a similar rule of
practice in regard to the evidence of young children (see R.v.Manda,
1951 (3) SA
158
(AD) at p. 163).
In the present case, therefore, a considerable degree of caution was plainly
called for."
The passage is apt. Here, too, the
com-plainant in respect of each count, although not strictly speaking a single
witness, was still
a child and the charge had a sexual connotation. All
evidence" implicating an accused, whoever testifies, ought to be treated
cautiously
and not uncritically. But where, as here, additional circumstances
coincide, each of which entails its own risk of unreliability,
including
invention, suggestion and manipulation (cf S v Snyman
1968 (2) SA 582
(A) at
585C-G; S v F
1989 (3) SA 847
(A) at 852H-853D), the scrutiny should not only be
critical, it should be almost hypercritical (cf Schmidt, Bewysreg 3rd ed.
112).
As appears from the dictum quoted the
counts
11
should be treated separately. I turn, therefore, to the first
one.
Calvin's evidence stands alone. He is not corroborated by Grant because
Grant's version of what happened to Calvin differs so fundamentally
from
Calvin's own version as to detract rather than to support. Grant did not testify
that Calvin was molested while he was sitting
on the appellant's lap; he did not
confirm that the appellant put hís hand inside Calvin's pants from the
top; or that the
incidents he described happened three to four times during the
week or lasted for 2 - 3 minutes at a time.. So, too, when it comes
to Calvln's
version of what appellant was supposed to have done to Grant. According to
Calvin he saw Grant sitting on the appellant's
lap. Grant denies this. Calvin
said that he could definitely see that appellant "was actually physically
putting his hand in Grant's
pants and I could see that he was also fiddling
around." This was not Grant's evidence. In any event it is exceedingly unlikely
that
he would have been able to see any such fiddling. Clearly he was imagining
and exaggerating.
12
Conduct such as described by Calvin by a school master in front of an entire
class, visible to all the other pupils, would in any
event be so bizarre as to
border on sheer lunacy.
The only common feature between the evidence of the
two State witnesses is that each of them mentions that the appellant touched him
on his private parts. But viewed in the light of the wide-ranging discrepancies
between the two versions as to how it happened, this,
in my view, does not
constitute proper corroboration at all.
Calvin and Grant cannot both be
right. One. or both of them are guilty of invention or, at the very least, of
such exaggeration as
to render their evidence unreliable.
Counsel for the
State commenced his address in this court by conceding that conduct by the
appellant, such as described by Calvin,
was highly improbable. He further
submitted that, of the two, Calvin's evidence should be rejected and Grant's
13
accepted. I agree with him that Calvin's evidence must
be rejected. One
can legitimately speculate as to why
Calvin should ,have incriminated the
appellant. In
S v R supra, an infinitely stronger case on the facts
than this one, the evidence of five boys was rejected,
resulting in the acquittal of the appellant, because of
the danger that the boys,
"through their talk, influenced one another and that there was a
real-possibility that the similarities in their stories were due,
not to the
fact that they were true, but to the fact that they had a common source in talk
and gossip arnong the boys" (at p. 15H).
Here there was no similarity in the stories of the two'
complainants and
no evidence that the two of them had
discussed matters - an improbability in
itself, if the
appellant conducted himself in the manner described
by
Calvin - but the possibility of outside suggestion
cannot in my view be
ruled out. This is particularly
so when certain passages in Calvin's evidence is
considered. I have in mind pronouncements by him such
as the following:
"
ACCUSED:
Is the topic, sex, sex related incidents ever
discussed on playgrounds, if
that's the question more specifically?
All children talk about sex as in
normal sex
14
and sometimes they do refer to gays but child molestation is not something that
people like to refer to, not even children."
And
again:
"The police established a child protection
unit and there was a lot of media
publicity
on the TV about child molestation?
Yes.
Yes? That, I agree with,
ja.
Sure. Then could I suggest to you that that is why you only come forward now
with
this story? No, look, with the constant
mentioning of child molestatrion", fondling and what have you, in that line, it
does instigate a person to come forth with it. It's
like the final thing that
would like bring you forth to mention something like that, or to go talk to
someone about it.
Sure, I quite agree with you there? But then why aren't there more people that
have come forth and accused Mr De Graaff of
fondling private parts? Because they are
too scared of you. I've got guts. They
haven't.
I don't think anyone is
scared of me,
not at school or anywhere else? If you've
got a pervert on the loose, you would be scared of that person.
I have letters in my pocket here given...from children to me at the end of the
year saying thank you for being a teacher for the
year, thank you for being a
friend, thank you for letting me come and discuss problems
with you? Sir, we are not arguing what
kind of personality you have? Even myself stated you are a nice, likeable
person. You
15
were very popular. You are a nlce person -but in that line, you were a little
mixed up."
That is not, to my mind, the spontaneous
language of a 14 year old and it leaves one with the uneasy but distinct feeling
that his
evidence was not entirely uncontaminated by suggestions from
others.
Grant did not corroborate Calvln. On the
contrary he
contradicted him. Calvin also contradicted
himself. So, for example, when
asked in evidence-in-
chief why he had not complained about the appellant'
s
outrageous conduct for two years he said:
"I never had the courage to go up and talk to someone about
it."
But when asked the same question
under
cross-examination why no one else in the class
complained, he
stated:
"Because they are too scared of you. I' ve got guts. They
haven't."
Calvin's evidence, in my opinion, lacked
the safeguards and failed to satisfy the stringent criteria of proof required
for a convictlon
in a matter of this sort.
16
What about the appellant's own evidence? Does that compensate for the
inadequacies in Calvin's? The appellant, it must immediately
be said, was an
unimpressive witness and a poor advocate in his own cause. His
evidence-in-chief, consisting of a rambling appeal
to the Bible, did not deal
with or deny the allegations against him. One can certainly not blame anyone for
not regarding him as
a model witness. In the course of his evidence the
appellant made a number of apparently damaging concessions, especially in
relatlon
to count 2, but it was not my impression, on reading his evidence, that
he was inexorably and. reluctantly driven to give ground.
It was rather as if
the appellant felt himself compelled to make allowance for theoretical
posslbilities. I shall refer to some examples
later in this judgment. As far as
count 1 is concerned he conceded that pupils sometimes sat on his lap although
he had no recollection
that Calvin ever did so. That, in my view, was a
colourless concession. So, too, it counts for little that he said that he
"played"
with the children. He certainly never conceded that he ever fondled or
played with Calvin's
17
private parts in the manner described by him or at all. The
furthest he went was to explain that it was part of his teaching technique
to be
playful towards the children in order to put them at ease and make his classes
"fun".
All things considered the State, in my view, fell short of proving the
actus reus on count 1.
Turning to count 2 the first point, once
again, is
that Calvin's description of events, as
appears from the passages quoted
above, devietes to
such an extent from Grant's evidence that it lends
no
support to it. But the appellant, under.
cross-examination, did make
some concessions which tend
to strengthen the State case. There are
several
passages in his evidence where he acknowledges the
possibility
that he may have touched Grant's private
parts by accident when Grant was
jumping around because
he was being pinched or tickled. So, for example,
he
said:
"What do you think of Grant's evidence? Do
you think it was the truth? Do you
agree
with everything that he said? Yes,
Sir.
Everything that he said? I heard
his
evidence, yes.
Are you now thinking
carefully? I
18
did pinch them but I wouldn't say I pinched them on their private parts for
maliciously intended pinching them on their private parts.
So, in other words, you did pinch them
on their private parts?
No.
And again:
"So, you are saying that the only time that
you think that you could have
pinched
anybody's private parts was when you were
busy pinching them on
the inside of their
thighs and they were jumping around that you
now
accidentally pinched their private parts?
Yes,
Sir."
And again:
"Well, if I had to pinch them, Sir, it was accidental that I ever pinched their
private parts."
And again:
"Did you ever have the intention to fondle any of these two
witnesses, fondle their
private parts? No, Sir.
Although it could have happened
accidentally? Yes."
The appellant was challenged on why he did not put it to Grant that if he
touched him he did so unintentionally. The reason, of course,
is obvious.
19
He never conceded doing so as a fact. Nor did he even recall doing so
accidentally. He was merely conceding the possibility that it
might have
happened in that way. When, in the first of the passages quoted above, he stated
that he agreed with what Grant had said,
he obviously had in mind Grant's
evidence that he pinched his leg. He speciflcally denied pinching his private
parts. His given explanation
for not putting it to Grant that he may have done
it accidentally - an explanation amply borne out by the incompetent way in which
he conducted his defence - was that he was not au fait with legal procedures and
techniques.
But having said that, the fact remains that Grant stated
positlvely that the appellant did touch his private parts. The appellant
conceded it as a possibility. There is nothing in the appellant's evidence or in
the probabilities to show that Grant was deliberately
untruthful or genuinely
mistaken; his evidence must therefore be accepted. To that extent the State, I
believe, has proved the actus
reus alleged in count 2.
Why did the appellant do it? One possibil-
20
ity, of course, is that it was a means of sexual titilation. If that were so
the appellant was rightly convicted. Grant, however,
did not think so and he
should know. It is idle to suggest that a 12 year old boy would not realise that
it was inherently wrong
for his schoolmaster to contrive to fondle his
genitalia. He did not say, and he was not asked, where on his private parts he
was
pinched, whether on his penis or his scrotum. If it was an unmistakable
attempt to fondle his penis he would undoubtedly have known
that it was wrong.
Yet he was quite specific that he did not think that the appellant did anything
wrong. According to Grant it might
have happened twice. At first he said that he
did not think that the appellant did so "on purpose". Then, on being pressed by
the
prosecutor, he said that perhaps it was a form of punlshment. It is not
entirely clear, reading this part of his evidence, whether
he meant that it was
the pinching of his leg, during which his genitalia were touched, that was
intended as punishment or whether
the punishment was specifically the pinching
of his genitalia. But even assuming the latter, it was a
21
suggestion which Grant advanced but tentatively when the prosecutor clearly
sought a more incriminating answer from him. Of course,
if the appellant pinched
his genitalia as punishment it must have been done "on purpose". To that extent
Grant's evidence is self-contradictory.
Grant's first answer, that it was not
done on purpose, confirms the appellant's own hypothesis that it might have
happened by mlstake.
This is further confirmed by Grant's evidence that the
appellant never put his hand underneath his underpants. Moreover, according
to
the evidence, the appellant pinched and tickled the children. He said he did so,
playfully as part of his teaching technique.
One may question his wisdom but can
one reject his explanation as being fanciful? I think not. Obviously the
children, when pinched
and tickled, would jump about. If it was the appellant' s
custom to plnch the soft flesh of the upper inner leg, it mlght well have
happened that he could have touched Grant's genitalia by accident.
And if it did happen accidentally, on the one or two occasions mentioned by
Grant, that would have
22
been neither a case of "fondling" nor would it have been intentional. The
State must prove that the appellant, intentionally, knowingly,
committed an
indecent act (Snyman, Strafreg, 2nd ed. 489). Guilty knowledge can be inferred
from the inherently indecent nature of
the act.itself. Whether it can likewise
be inferred from extraneous circumstances where the act itself is not obscene
(cf S v F en
'n Ander
1982 (2) SA 580
(T)), is not an issue in this case for the
touching of someone's genitals is unquestionably an act which is inherently
indecent.
But the appellant proffered an explanation: that it happened, if at
all, accidentally. If that explanation is accepted it would negate
the requisite
dolus. It must be accepted if it is reasonably possibly true. On a conspectus of
the evidence that explanatlon, in
my opinion, is not far-fetched. At worst for
the appellant there was doubt. He was entitled to the benefit thereof. He should
have
been acquitted on count 2 as well. His appeal ought to succeed.
P M NIENABER JA