THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  769/2013

Not reportable

In the matter between:

ALBERTO ABRAM DE SOUSA

Appellant

and

THE STATE

Respondent

Neutral citation:
De Sousa v The State (769/13) [2014] ZASCA 142    (26
September  2014)
Coram:
Mpati P, Bosielo and Willis JJA

Heard:

12 September 2014

Delivered:
26 September 2014

Summary:
Indecent assault – the evidence of forensic social worker
assisting the court in finding that an indecent assault had occurred –
appeal upheld in respect of first count – appeal dismissed in respect of
second count.
______________________________________________________________

ORDER

On appeal from: The Free State High Court, Bloemfontein (Lekale J and
Thamage AJ sitting as the court of appeal):

1 The appeal is upheld in respect of the first count of indecent assault;

2 The conviction and sentence on the first count are set aside;

3 The appeal is dismissed in respect of the second count of indecent assault.

JUDGMENT

Willis JA ( Mpati P and Bosielo JA concurring):

[1] This appeal is concerned only with the correctness of the convictions of
the appellant on two counts of indecent assault. The appellant was arraigned
in the regional court, Welkom on two counts of indecent assault and a count
of rape. Section 3 of the Sexual Offences Act 32 of 2007 (the Sexual Offences
Act) was applicable to the count of rape. He was convicted as charged and

sentenced to five years’ imprisonment on the first count of indecent assault
and ten on the second. In respect of the rape conviction, the appellant was
sentenced to 15 years’ imprisonment. The magistrate ordered these
sentences to run concurrently. The effective sentence was therefore 15 years’
imprisonment.  It was also ordered that his name be included in the Register
for Sexual Offences in terms of s 50(2)(a) of the Sexual Offences Act and that
he de declared unfit to possess a firearm in terms of the Firearms Control Act
60 of 2000.

[2] Both the appellant’s application to the magistrate for leave to appeal
and his subsequent petition to the Free State High Court were dismissed. He
then appealed against the dismissal of the petition.  The high court then,
somewhat anomalously, on hearing the petition granted leave to appeal to this
court. This court then found that what was properly before it was not an
appeal in respect of the convictions and sentences but an appeal against the
dismissal of the petition. It upheld the appeal against the dismissal of the
petition and granted leave to appeal against his convictions and sentences,
directing the appeal to the Free State High Court.

[3] The high court (Lekale J, with whom Thamage AJ concurred) upheld
the appeal against conviction and sentence in respect of the count of rape but
confirmed the convictions on the two counts of indecent assault. The high
court confirmed the sentence of five years for the first count but reduced the
sentence on the second count to seven years’ imprisonment, directing that the
sentence on the first count should run concurrently with the sentence on the
second count. On appeal, the high court therefore reduced the sentence to an
effective term of seven years’ imprisonment. The high court granted leave to
appeal to this court against conviction only.

[4] The first count relates to incidents in 2005 and/or 2006 at the home of
the complainant’s paternal grandmother in Loop Street in Welkom, during
which, on several occasions, the appellant allegedly summoned the
complainant to kiss his lower naked stomach and also exposed his penis to
her.

[5] The second count relates to incidents which allegedly occurred
between September and December 2007 at the appellant’s then home in
Romeo Street in Welkom during which he allegedly inserted his penis into the
complainant’s mouth and, from time to time, ejaculated therein.

[6] The complainant had been very close to her aunt, the wife of the
appellant and had loved her cousins, the children of the appellant. The trigger
which led to the disclosure of the incidents by the complainant to her mother
seems to have arisen from the gift of an item of jewellery which had been
given to her by her aunt. This gesture led the complainant to believe that her
aunt had learned of the incidents and was trying to ‘buy’ her silence.

[7] The appellant denied having committed the offence. He said that: he
had ‘no idea’ why the complainant would falsely have implicated him. He had
no previous convictions. The appellant is the uncle, by marriage, of the
complainant.

[8] The conundrum which has exercised the mind of every court that has
considered the matter is that the case against the appellant is critically
dependent on the evidence of the complainant who was a single witness, 12
years old when she testified and six years old when the alleged acts of
indecent assault occurred.

[9] A careful analysis of the evidence is that it is safe to conclude that in
Loop Street he may merely have had the complainant kiss the lower part of
his naked stomach and did not, in fact, deliberately expose his penis to her.
Distasteful though this incident may have been, it does not constitute indecent
assault. The high court was therefore wrong to have confirmed the conviction
on the first count.

[10]  Insofar as the second count is concerned, the complainant described
how the appellant put his penis into her mouth and how thick liquid came out
of his penis into her mouth, which she spat out   She described how she did

not see the liquid but could taste it. This evidence as to the taste and texture
of ejaculate was, with exquisite delicateness, described by Lekale J as
‘sensory information’.  When the appellant’s counsel was asked how, if the
complainant had not experienced the sensation of ejaculate in her mouth, she
could describe it in this way, it was submitted that she could have seen
pornographic films. Seeing does not extend to the vivid descriptions of
ejaculate used by the complainant.

[11] There is a discrepancy in the complainant’s evidence inasmuch as she
said twice that the appellant, while he had his penis in her mouth, shook her
head ‘back and forwards’. Later she changed this to ‘left and right’.

[12]  The State called a forensic social worker, employed by the South
African Police Service, Charmaine De Waal. She is vastly well qualified and
experienced in the field of child sexual abuse. She undertook extensive
consultations and evaluations with the complainant. She had about seven
sessions with the complainant, each lasting for approximately one and a half
hours.

[13]  It is intrinsic to the nature of the forensic social worker’s task that not
only would she hold consultations with the complainant but also that the
complainant would make reports to her. These reports are clearly hearsay.
The evaluation of the allegations, however, went way beyond the relaying of
reports. The social worker conducted extensive scientifically respectable tests
with regard to the complainant’s version of events. It was described by Lekale
J as a ‘multi-dimensional framework’. The social worker’s conclusion was
unequivocal: the complainant had experienced sexual abuse of the kind
described. Lekale J dealt with her evidence well.  By considering the evidence
of the forensic social worker, the court was assisted in making a correct
finding that an indecent assault had, indeed, occurred.

[14]  If regard is had to the totality of the evidence, in which the following are
the key factors:
(a) the appellant was an unconvincing witness;

(b) despite discrepancies in her evidence, the complainant came
across well;
(c) the evaluation by the forensic social worker;
(d) the sensory information relating to ejaculate given by the
complainant,
it is clear, beyond reasonable doubt, that the appellant is guilty on the second
count. Although he enjoys the benefit of the doubt in respect of count one, it
has no practical effect on sentence as the sentence on count one was
ordered to run concurrently with the sentence on count two.

[15] The following is the order of the court:

1 The appeal is upheld in respect of the first count of indecent assault;

2 The conviction and sentence on the first count are set aside;

3 The appeal is dismissed in respect of the second count of indecent
assault.

_______________________
N P WILLIS
JUDGE OF APPEAL

APPEARANCES:

For the Appellant:
J Nel
Instructed by:
R Oosthuizen Muller & Partners, Welkom
c/o E G Cooper Majiedt Inc, Bloemfontein

For the Respondent:

W J Harrington
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

September 2014

STATUS

Immediate

De Sousa v The State (769/2013)
Please note that the media summary is for the benefit of the media and does
not form part of the judgment.

Today the Supreme Court of Appeal (SCA) upheld an appeal on one count of
indecent assault, while dismissing the other.

The high court had confirmed the regional court’s convictions on indecent assault
and had ordered the appellant to serve an effective term of seven years’
imprisonment with the sentences running concurrently.

The SCA concluded that although the complainant had been 12 years’ old at the
time when she gave evidence and six years’ old when the incidents occurred, her
evidence could be accepted because the sensory information in her testimony could
not have been imparted unless the incident had taken place as she described.
Furthermore, the evidence of the forensic social worker, which entailed extensive
psychological testing, provided objective corroboration of the complainant’s
testimony.

The court concluded it could not safely confirm the conviction on the first count but
could do so on the second. As the sentence on the first count had been ordered to
run concurrently with that on the second, the outcome of the appeal did not affect the
sentence