SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 236/2015

In the matter between:

CORNELIUS MARTHINUS JANSEN
APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:   Jansen v The State (236/2015) [2016] ZASCA (133)
(29 September 2016).

Coram:
Tshiqi, Seriti, Saldulker and Mathopo JJA and Fourie AJA

Heard:
24 August 2016

Delivered: 29 September 2016

Summary: Criminal appeal: appellant convicted on two counts of
contravening certain sections of Criminal Law Amendment (Sexual
Offences and Related Matters) Act 32 of 2007: Trial Court relied on
evidence of single witness: proper judicial approach to such evidence:
Evidence of single witness not satisfactory and therefore unreliable:

convictions and sentences set aside.

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ORDER

___

On appeal from: Gauteng Local Division Johannesburg (Tshabalala J
and Siwendu AJ sitting as court of appeal):
The appeal succeeds, and the appellant‟s convictions on both counts 7
and 8 and the sentences imposed pursuant thereto are set aside.

___
JUDGMENT

___

Seriti JA (Tshiqi, Saldulker, Mathopo JJA and Fourie AJA
concurring):

[1] The appellant, Mr Cornelius Marthinus Jansen, appeared in the
Regional Court, Kempton Park facing nine counts of contravening
various sections of the Criminal Law Amendment (Sexual Offences and
Related Matters) Act 32 of 2007 read with the provisions of section 51
(1)(a) and Schedule 2 of the Criminal Law Amendment Act 105 of 1997
as amended.

[2] On 21 November 2012 he was acquitted on seven counts and was
convicted on two counts namely counts 7 and 8. After his conviction he
was sentenced to ten years‟ imprisonment on count 7 and life
imprisonment on count 8.

[3] The allegations pertaining to count 7 are that during the period of
May 2008 to July 2008 the accused unlawfully and intentionally exposed
or displayed his genital organs to his minor child who will be referred to
as CJ who was then three years old, by „being completely naked in front
of her on numerous occasions, by bathing with her and afterwards
rubbing his body and his genitals with cream while she was made to
watch him‟.

[4] The allegations pertaining to count 8 are that during July 2010 the
accused unlawfully and intentionally sexually violated CJ (then five years
old) by penetrating her vagina with his finger, alternatively by „touching,
rubbing and pinching her vagina with his hands and fingers‟.

[5] The appellant applied for leave to appeal against both convictions
and sentences. On 7 December 2012 the appellant was granted leave to
appeal to the court below against both his convictions and sentences. On
27 November 2014 the Gauteng Local Division, Johannesburg dismissed
his appeal. The appellant with special leave of this court now appeals
against both his convictions and sentences.

[6] The main issues in this appeal are whether the State has proved
beyond reasonable doubt that:
(a) the appellant exposed or caused exposure of his genitals to CJ during
May 2008 to July 2008;
(b) the appellant raped CJ during July 2010 or sexually assaulted her by
touching, rubbing and pinching her vagina with his hands and fingers;
(c) whether the evidence of CJ was satisfactory, reliable and truthful;
(d) whether the appellant‟s version could be rejected as false and not
reasonably possibly true.

[7] The State relied on the evidence of seven witnesses, namely CJ, Ms
Butterworth, Dr Bellingan, Ms Lillian Fikizolo, Ms Leona Swart, Ms
Lizzie Khumalo and Ms Letitia van den Berg. The defence relied on the
evidence of inter alia the appellant, Prof Spies, Dr SC Blunden, Dr C
Opperman and Ms Lorraine Jansen (Lorraine).

[8] CJ was three years and five years old respectively at the time of the
alleged offences and was six years old at the time she testified. Her
evidence in respect of count 7 was as follows: that at the time when she
stayed with her parents (during 2008) her father injured her. In short she
testified that her father injured her and she said „Ja hy het daar gevryf by
my blommetjie‟, that her „blommetjie‟ is between her legs, and she used
to bath alone, but when her father puts cream on her body „dan vat hy
weer aan my blommetjie elke keer‟.

[9] Regarding count 8 she testified that at some stage she left their
home and went to stay at Huis Impak Children‟s Home. During school
holidays and weekends she used to visit Ms Swart, her foster parent. At
the time when she was staying with Ms Swart she visited her father. She
was asked if her father injured her when she visited him and she said „Ja
toe ons Soccer World Cup toe was nê toe gaan eet ons en toe vryf hy
weer by my blommetjie‟, while they were at his house.

[10] She further testified that she reported to Ms Fikizolo, who worked
for Ms Swart, that her father „het by my blommetjie gevat en by my
tieties‟. At the time that she stayed with Ms Swart, she visited her father
only once. She remembers Ms Lizzie Khumalo, who was working for her
mother and father. She told Ms Khumalo that her father „het my
blommetjie gevat‟.

[11] Further details came out during her cross examination. Amongst
others she testified that she reported to Ms Swart and her husband that the
appellant „het in my blommetjie gevat‟. She testified further that her
father pushed something into her vagina. When asked what did her father
push into her vagina, she said „dit is amper soos „n spyker maar dit is nie
soos „n spyker nie dit is n ding wat eintlik vir grootmens is maar hy het
dit in my blommetjie gedruk‟. She was unequivocal that no other person
touched her vagina, nor injured her except the appellant. In re-
examination she said that „pappa se tottie was geel gewees en dit het
gebloei‟.

[12] Ms Butterworth, a social worker, who was tasked with the forensic
assessment of CJ during 2008 testified that she first saw CJ on 27 May
2008, when she was around three and a half years old. The purpose of the
consultation was to provide therapy and counselling. At that time, CJ had
been placed in a place of safety with her cousin, Ms Smith. She again had
several sessions with CJ in August and September 2008. In 2009 she had
therapeutic interventions with CJ and thereafter prepared a number of
reports. In one of the reports she stated that over the assessment period
she witnessed several disturbing behaviour patterns displayed by CJ. This
raised a concern that she had been exposed to either inappropriate sexual
conduct or inappropriate sexual behaviour but that she could not state that
she experienced them herself. According to her CJ could have obtained
the information from both her parents. Mrs Butterworth specifically
stated that during their sessions CJ never accused or implicated the
appellant. She was however concerned with the fact that during one of the
sessions she drew a father with a penis and appeared to be pre-occupied
with her relationship with her father. Mrs Butterworth was also concerned
with the fact that in one of the sessions CJ placed her mouth over the

penis of an anatomically correct doll and told her that she was biting his
“tottie.” As a result of those concerns and observations Mrs Butterworth
stated she formed an opinion that the appellant was most likely the
abuser.

[13] In May 2008 Ms Lizzie Khumalo was working as a domestic
worker for the Jansen family. She made a written statement to the police.
At the time of the trial, the investigating officer could not trace her. The
State made an application that her statement be admitted in evidence and
the application was granted.  In the statement Ms Khumalo states that she
was a domestic worker for Ms Linda Jansen. During May 2008 when she
was busy cleaning the house CJ who was three years old at the time told
her that the appellant had fondled her private parts. The child showed her
what her father did to her.

[14] Dr DC Bellingan, who was the East Rand District Surgeon for 20
years testified. He examined CJ on 23 July 2010 when she was five years
old. After the examination he prepared a report. Amongst others he
testified that the posterior fourchette was intact. The hymen had a very
small opening and consisted of the rim only with a small tear at 6 o‟clock.
In CJ the posterior fourchette was still present which indicated that the
penetration of the child came from either directly in front or from above
which is usually someone lying next to a child and putting a finger in her
vagina. If it was a penis it would have come from the bottom and run
across the posterior fourchette and in the process it would tear the
posterior fourchette. The tear that he saw was an old injury which was
almost completely healed. Dr Bellingan further testified that had the child
put her finger in her vagina she would have had a similar appearance.
Based on his clinical examination he concluded that digital penetration

had taken place.

[15] Ms Fikizolo also testified. She testified that during 2010 she was
employed as a domestic worker and stayed at Ms Swart‟s house. She
knows CJ as she used to visit Ms Swart‟s house. On a certain Monday at
the beginning of July 2010, whilst she was cleaning the passage, CJ came
to her and told her that, the previous day, which was a Sunday her father
touched her on her private parts and also put her on top of the bed and
undressed her. She told Ms Swart what CJ told her and Ms Swart
requested her to write a report which she wrote the following day,
Tuesday the 6 July 2010.

[16] Ms Swart testified that she is the foster parent of CJ. She met CJ
when she was 4 years old in 2009 at Jakaranda Academy and CJ was in
her class. It was a kindergarten school. On 25 July 2009 she took her out
for the weekend. At that stage they were foster parents, and they could
take her over weekends and during school holidays. In July 2010 CJ
stayed at their place for the entire duration of the holidays. It was the long
school holidays at the time of the Soccer World Cup. She was instructed
not to have any contact with CJ‟s parents. CJ‟s parents were each allowed
to see CJ on alternative Sundays at Huis Impak. Her father was later
allowed to take her away for about five hours on a Sunday. The
arrangement was that she would drive with CJ to Huis Impak, and her
father would come and collect CJ and bring her back later to the same
place.

[17] On or about 4 or 5 July Ms Swart went with CJ to Huis Impak
where the appellant came and collected CJ. She does not know whether
the appellant was alone when he came to collect CJ. However he was

alone when he returned her. In the evening whilst asleep CJ cried out „no
daddy, no daddy‟. She went to CJ and comforted her and she slept. The
following day, Ms Fikizolo came to her and told her what CJ told her.
She requested Ms Fikizolo to reduce to writing what she was told by CJ.
She was shocked when she heard the report by Ms Fikizolo.

[18] The following Sunday she took CJ to the place where the appellant
collected her. When the appellant brought back the child he was alone.
The Saturday prior to the visit to the appellant, CJ when told that her
father will see her again the following day, was not happy. Ms Swart said
that CJ told her that she does not want to see the appellant because he
injures her. In the evening, like the previous occasion, whilst asleep CJ
had nightmares and said „no daddy no daddy‟. After the second visit by
the appellant, around 11 or 12 July 2010, CJ told her that her father
touched her private parts again. She again wrote a report and sent it to
Huis Impak. After the school holidays she took CJ back to Huis Impak.
She detailed incidents where CJ behaved abnormally for a child of her
age.

[19] Under cross-examination she referred to the two reports she wrote
which were dated 6 July 2010 and 14 July 2010 respectively. In both
reports she wrote what CJ told her. After every weekend and holiday they
were required to write a report about the activities of the child and any
problems that the child has encountered. She was referred to a portion of
the report she wrote which reads as follows:
„[CJ] is gereeld baie bang. Sy wil dan net naby my wees of op my skoot sit. Ek het
haar al gevra hoekom is sy bang, haar antwoord was ek is bang vir pappa en vir
daardie vrou . . . Ek het haar gevra waarom is sy vir hulle bang, sy het gesé want
pappa het sy tottie in my privaat gedruk.‟

She confirmed that the portion quoted correctly reflects what CJ told her.
CJ, without any question from her (Ms Swart) told her what her father did
to her. She stated that she saw CJ masturbating on several occasions. CJ,
on one occasion “het haar handjie in haar broekie ingesit en sy sou haar
vingertjie diep indruk en masturbeer . . .” and that “in die bad het sy tot
haar waslappie binne in haar genitaliee gedruk . . . die bad het mos so
propietjie; so silwer dingetjie bo-op, en sy sal gaan sit en sys al op die
ding rondskuif…met haar privaatdeel; . . . sy doen dit vele kere.” She
stated that when the appellant brought back CJ to Huis Impak, he was
always alone. If Ms Lorraine Jansen was with appellant when the
appellant came to collect CJ at Huis Impak, she did not see her. Under re-
examination she said CJ on several occasions mentioned that „pappa my
blommetjie gevat en gevryf het‟ and that „pappa sy tottie in my privaat
gedruk het‟.

[20] Ms Letitia van der Berg, a social worker, also testified. She saw CJ
for the first time on 5 August 2010. She was requested by the South
African Police Services to do a blind forensic assessment of CJ. She
prepared a report after she consulted with CJ on 5 August, 2 September, 7
September and 16 September. In her report she states, amongst others,
that CJ informed her that Barend, a child at the Children‟s Home and
another person, who she would not name, had touched her private parts.

[21] The appellant testified in his defence and called a psychologist, Dr
Carole Anne Opperman, Dr C Blunden a social worker and Ms Lorraine
Jansen, his then partner as defence witnesses. He testified that he got
married to Linda, the biological mother of CJ on 30 August 2003 and CJ
was born on 8 November 2004. Linda had a severe bipolar mood disorder
and she was misusing alcohol. When they got married Linda was working

but a few months after their marriage she was retrenched and she never
worked again. Linda would take care of CJ during the day but he would
take over upon his return from work as Linda would be drunk. He would
bath CJ, put cream on her and dress her. CJ had a rash around her genitals
and he applied Fissan Paste around her genitals. From 29 September 2007
up to 13 October 2007 Linda was hospitalised at Linksfield Park Clinic.
Prior to that in 2006 Linda was admitted at a rehabilitation centre at
Boksburg for a month. During Linda‟s hospitalisation Linda‟s friends
used to look after CJ during the day until he came back from work. In
July 2008, Linda went to lay criminal charges against him and never
returned home. She accused him of sexually molesting CJ.

[22] The appellant further testified that between 6 March 2009 and 23
July 2010 CJ stayed at Huis Impak. He used to visit her every second
Sunday of the month from 11h00 till 13h00 at Huis Impak. Later it was
decided that he could take her from Huis Impak for three hours. The first
Sunday he picked her up they were supposed to see Prof Spies, a social
worker. When they were on the way, Prof Spies phoned him and
cancelled the appointment. He then went to Rooihuiskraal where he met
Lorraine at the Spur where they had lunch.

[23] He picked up CJ on four other occasions and Ms Lorraine Jansen
came with him. On one occasion they finished having lunch early and he
went to his house with CJ. His son, who stayed in London, was home for
the Soccer World Cup. At his home they played Lego on the carpet for
about half an hour till the time was up and together with Lorraine they
took CJ to Huis Impak. He took CJ to his house only on that one
occasion. He denied all allegations levelled against him.

[24] Under cross-examination he said that he and Linda separated in
July 2008. He told Professor Spies that he used to care for CJ when Linda
was drunk and unable to take care of CJ. On one occasion CJ burst into
the bathroom whilst he was putting cream on his body. When CJ opened
the door he was naked, so she did see him naked. On another day CJ burst
into their bedroom when he and Linda were engaged in sexual
intercourse. On noticing her they stopped and he took CJ to her bedroom.
When CJ was under a year old she used to bath with him.

[25]  He told Professor Spies and Dr Carol-Anne Opperman that Linda
coached CJ to accuse him of sexual abuse. He confirmed that he told Dr
Carol-Anne Opperman that CJ was sexually acting out and behaving in
an inappropriate manner because CJ saw him putting cream on his body
and also walked into their bedroom when Linda and him were having
sexual intercourse. When CJ saw him in the bathroom, he was putting
cream on his legs, arms, between his legs and on his penis. When asked
why CJ was masturbating, he said she could have been coached by her
mother. He further said that the inappropriate behaviour of CJ noted by
various people could be as a result of Linda telling CJ that if anybody
touched her genitalia she should tell her. Linda said this to CJ several
times. He had five visits to CJ without any supervision. He had more than
four people with him when he was with CJ, except for one occasion when
he picked up CJ to take her to Professor Spies, but when he took her back
he was not alone.

[26] The next defence witness to testify was Dr C Blunden, a social
worker. She had various sessions with CJ. CJ made allegations of sexual
molestations. Her involvement with CJ was therapeutic. During one of
the sessions, CJ told her that a monster hurt her on her vagina. She further

testified that CJ informed her that „The monster hurt me by my tinky
winky. He hit me with a stone. It was sore. He smacked me with a stone
on my tinky winky. I was sore. She had her clothes on. He took it off.
Then I asked what the stone looked like. She said a baby one. The
monster like daddy. It was not daddy . . .  It was one of daddy‟s friends . .
. It was a big uncle . . . His hair was black. He did it three times…He said
he is going to klap me on my face if I tell daddy.‟

[27] Dr Carol-Anne Opperman also testified. She consulted with CJ on
four occasions. Her first consultation with CJ was on 16 March 2009 and
she compiled reports. In one of the reports she said that an inappropriate
relationship exists between the appellant and CJ. From information she
received it indicates sexual abuse and sexualised behaviour. In one of her
reports she said that:
„However it is difficult to determine who the perpetrator is as Cassidy accuses both
her mother and her father of sexually abusing her plus as far as I know eight other
people‟.

[28] Ms Lorraine Jansen also testified on behalf of the defence. She is
the ex-wife of the appellant but stayed with him again in July 2010 after
the appellant divorced CJ‟s mother. She accompanied the appellant on
every occasion he went to collect CJ at the Children‟s Home, except
when the appellant had taken CJ to meet with Professor Spies in Pretoria.
She was also present when they returned her, and he handed her to Ms
Swart in the street in front of the Children‟s Home.

[29] Section 208 of the Criminal Procedure Act states that an accused
may be convicted of any offence on the single evidence of any competent
witness. In Stevens v S [2004] ZASCA 70; [2005] 1 All SA 1 (SCA) para

17, Navsa and van Heerden JJA said:
„As indicated above, each of the complainants was a single witness in respect of the
alleged indecent assault upon her . . .  It is, however a well established judicial
practice that the evidence of a single witness should be approached with caution, his
or her merits as a witness being weighed against factors which militate against his or
her credibility . . .‟
In S v Mahlangu [2011] ZASCA 64; 2011 (2) SACR 164 (SCA) para 21
Shongwe JA said:
„The court can base its findings on the evidence of a single witness, as long as such
evidence is substantially satisfactory in every material respect, or if there is
corroboration. The said corroboration need not necessarily link the accused to the
crime.‟

[30] In its judgment the trial court, regarding count 7 said „it is likely
that the little girl must have seen her daddy‟s tottie on more than one
occasion‟, and convicted the appellant on count 7. There is no credible
evidence to support the conclusion of the trial court. During her evidence
CJ did not adduce any evidence which can sustain a conviction of the
appellant on count 7. The standard of proof in a criminal trial is proof
beyond reasonable doubt. It is trite that an accused bears no onus to
convince the court of the truthfulness of the explanation that he tenders.

[31] Concerning count 8 CJ is a single witness, and save for the
contradictory reports she made to various people about alleged sexual
violations there is no other evidence to corroborate her version.
According to Ms Butterworth, the state‟s own witness, CJ did not
specifically implicate the appellant. Her conclusions are at best
speculative and are based on her observations of the concerning behavior
that CJ displayed during the therapy sessions. Ms Letitia van den Berg, a
social worker who also testified for the state stated that CJ had implicated

Barend, a child at the Children‟s Home and another person, who she
would not name, and she accused them of having touched her private
parts. It was not disputed that during her sessions with two of the defence
witnesses Dr Opperman and Dr Blunden, CJ also accused her mother and
eight other people of molesting her sexually. Mrs Swart‟s evidence of
how she observed CJ masturbating poses another problem for the state.
During cross examination Dr Bellingan was constrained to agree that
although it is rare for young girls to inflict the kind of injury that CJ
suffered in her genitalia they could themselves cause such an injury. All
this contradicts her evidence that only her father molested her. I am thus
not able to conclude that the injuries observed by Dr Bellingham could
only have been inflicted by the appellant. There is a real possibility that
such injuries could have been inflicted by CJ herself whilst she was
masturbating or could have been inflicted by anyone of the people CJ had
implicated. Another problem for the state is that CJ informed Leona that
her father pushed his penis into her vagina and this allegation that she
was sexually penetrated through a penis was denied by Dr Bellingan.

[32] These are serious contradictions which go to the heart of her case.
In my view, they have rendered her evidence untrustworthy, less credible
and unreliable. It cannot be said that her evidence is satisfactory in all
material respects.

[33] There is no reliable evidence that can sustain the conviction of the
appellant on both counts. Furthermore, the explanation of the appellant in
his defence is reasonably possibly true and he was entitled to an acquittal
on both counts 7 and 8. The High Court erred in confirming the
conviction of the appellant.

[34] The following order is made:

The appeal succeeds, and the appellant‟s convictions on both counts 7
and 8 and the sentences imposed pursuant thereto are set aside.
__________________
WL SERITI

JUDGE OF APPEAL

APPEARANCES:

For Appellant:
JHL Scheepers
Instructed by:
VFV Attorneys, Pretoria

Honey Attorneys, Bloemfontein

For Respondent:
N Muller
Instructed by:
Director of Public Prosecutions, Johannesburg
Director of Public Prosecutions, Bloemfontein