THE REPUBLIC OF SOUTH AFRICA

	IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN

CASE NO: A523/2010

In the matter between:

and

JUDGMENT   : 11 MARCH 2011

1. On 24 August 2009 the appellant was convicted on one count of indecent assault and two counts of rape. He was sentenced to imprisonment for a period of five years in regard to the first count, and to imprisonment for a period of 20 years in regard to each of the rape convictions. The trial court ordered that the sentences in respect of the rape charges were to run concurrently, the result being that for all three convictions the appellant was sentenced to imprisonment for a period of 25 years.
2. An application for leave to appeal both the conviction and the sentence was refused by the trial court on 26 May 2010. On 1 June 2010 the appellant applied to this court for leave to appeal sentence only. This court granted leave to appeal both conviction and sentence on 19 August 2010.
3. It is necessary to state at the outset that the complainants in all three matters were boys of a tender age. At the time the indecent assault was allegedly perpetrated the complainant, Tiaan, was only 6 years old. The complainants in regard to the rape charges, Kosie and Stephen, were aged 10 and 12, respectively, when the offences were alleged to take place. The thrust of the appeal against conviction was that the Magistrate had erred in accepting the evidence of the three young children who, it was argued, were single witnesses whose evidence was not corroborated.
4. At the commencement of the appeal the State made application in terms of section 22 of the Supreme Court Act for leave to introduce further evidence. No proper basis for the reception of the further evidence was evident from the application, and it was accordingly refused.

The conviction for indecent assault:
6. Tiaan gave evidence on 30 October 20O8, just over 9 years after the incident took place. He was 15 years old at the time he testified.
7.  He testified that he had encountered the appellant on a Saturday afternoon whilst riding his bicycle. The appellant had identified himself as "Chris". After he and the appellant had gone to Tiaan's house the appellant pushed him on the bicycle to a rugby field near to the Berg River. There the appellant indecently assaulted him by playing with Tiaan's penis. Tiaan gave a relatively detailed account of what had happened. Upon returning home Tiaan immediately told his parents what had happened. There was nothing about his cross examination which casts any measure of doubt about the reliability of Tiaan's evidence.
8. Tiaan's parents testified. They testified that Tiaan had reported the indecent assault upon him to them immediately. His father testified that he had become enraged upon hearing what had transpired, and had gone to try to find the perpetrator. He had not found him and a complaint was that day made to the police. The next day the appellant had arrived at Tiaan's house. He had come to deliver firecrackers he had promised to Tiaan, and also brought a letter. Amongst other things the letter contained an apology for what had happened the previous evening explaining that things had happened too quickly. When the appellant had arrived at Tiaan's house the following day Tiaan's father had made small talk with him to keep him there whilst the police were summoned. The appellant was arrested that day.
9. The appellant admitted that he had met Tiaan that Saturday and that the two of them had gone to the rugby field near the river. Tiaan's evidence was largely undisputed save that the appellant denied the indecent assault. But the appellant's evidence in regard to the events that day, and the letter he admitted writing, was unimpressive. His version was that Tiaan had followed him, but he could not explain why. To all intents and purposes his evidence amounted to nothing more than an unsubstantiated denial of the assault.

11. There were other aspects of the appellant's evidence during the trial which require comment. At one stage during his cross examination he suggested that he had been entrapped by Tiaan, as a reason for his having gone to Tiaan's house. He then explained this statement as one which came from a strange man whose thoughts were wandering. He could not satisfactorily explain why he had been in the company of Tiaan, who was so many years his junior, why they had gone to the river, or what they had done whilst at the river. After first testifying under cross examination that he had pushed Tiaan on his bicycle to the river he then testified that Tiaan had followed him to the river. These are mutually irreconcilable versions. He testified further, under cross examination that he had been on his way to meet people from Blommendal he knew, but did not explain why he had spent as long as he did sitting and talking to Tiaan at the river, if he was on his way to meet friends.

The Rape Convictions

14. On the appellant's own version he admitted knowing the two boys, and socialising with them at the place where the offences took place, the local swimming pool, over the period in question. He said he had witnessed the two boys having sex with each other. None of this was put to the two boys in cross examination by the appellant's counsel at the trial, a feature which supports the conclusion that the version given by the appellant is palpably false. Moreover, on the appellant's own version he did nothing to stop the two boys from having sex with each other, notwithstanding that he disapproved of their conduct, a quite unlikely state of affairs.

18.     In the result I would dismiss the appeal against conviction and sentence.

I agree and it is so ordered