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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO. CA 80/2006

In the matter between:

JOHANNES ALBRECHT BRUWER APPELLANT

and

THE STATE RESPONDENT

____________________________________________________________________________

JUDGMENT

____________________________________________________________________________

MOGOENG JP.

INTRODUCTION

[1] This is an appeal against the conviction of three counts of indecent assault and the sentence of six years imprisonment imposed in respect thereof.

[2] Leave to appeal to this Court against conviction and sentence was applied for but refused by the Court a quo. The Judge President was then petitioned and leave was granted, hence this appeal. I deal with the background below.

BACKGROUND

[3] The Appellant in this matter was at all times material hereto a teacher at Stella High School, which is located at Stella near Vryburg in the North West Province.

[4] He invited the 17 years old Complainant in count 1 (Herman de Bruyn) for a cup of coffee at his house during 1994. At the time, this Complainant was still a student at Stella High School and the Appellant was one of his teachers. Pursuant to the invitation, the Complainant went to the Appellant’s house. The Appellant made coffee. While the Complainant was drinking the coffee, the Appellant came to sit next to him.

[5] Appellant then put his hand on the Complainant’s thigh. The Complainant was uncomfortable about this. Consequently, he stood up, and went home. Two days later and on his own accord, the Complainant surprisingly went to the Appellant’s home to listen to CD’s. The Appellant again came to sit next to the Complainant. He placed his hand on the Complainant’s thigh, kissed his neck and placed the Complainant’s hand on his (the Appellant’s) private parts and asked him to play therewith. The Complainant rose and left.

[6] Two weeks later and again on the Complainant’s own free volition, he visited the Appellant at his house. The Appellant again put his hand on the Complainant’s thigh and kissed his neck. The Appellant then caused the Complainant to lie down on a mat and he lay on top of the Complainant. The Appellant then kissed the Complainant on his mouth. The Complainant said no but the Appellant held him tight. The Appellant put the Complainant’s hand on his (the Appellant’s) private parts and then penetrated the Complainant. After he had finished, the Complainant left.

[7] The Complainant left school while he was doing standard 7. In 1996 he began to work for the commando at Stella. The Appellant began to visit and bring him food at the commando. After a while he asked the Complainant to look after his house while he was away for about a week. When he returned, he again touched and fondled the Complainant as he had done before. He asked the Complainant to play with his (the Appellant’s) private parts until his penis became erect and he ejaculated. Thereafter, the Appellant took the Complainant to his bedroom. He told him to undress himself. The Complainant played with his own private parts, got an erection and while in that state, the Appellant took 4 photographs of him. In response to questions by counsel for the Appellant as to why he smiled in the photographs if he was unhappy about what was happening, the Complainant said that he smiled in the photographs because the Appellant asked him to. Thereafter, the Complainant left. As a result of the aforementioned experiences, he was hurt and does not know whether he is bi-sexual or not.

[8] The Complainant in count 2 (Rikus Pretorius) was the Appellant’s standard 7 student at Stella High School, in 2003. At the time, he was 16 years old. He wanted a tip from the Appellant about an issue relating to the Arts and Culture subject, of which the Appellant was his teacher. The Appellant said that they should meet at his (the Appellant’s) home.

[9] Upon their arrival at his home, the Appellant switched on the television set and showed him a video of gay people penetrating one another. The Appellant initially put his hand on the Complainant’s shoulder and then on the Complainant’s penis and asked the Complainant to reciprocate. The Complainant only went so far as to place his hand on the Appellant’s penis but could not take the process any further. The Appellant then told the Complainant that what they were doing was fine because it was natural.

[10] Appellant undressed the Complainant and ordered him to lie on the bed. It was then that the Complainant realised that the Appellant wanted to have sex with him. He put his mouth over the Complainant’s penis and gave him a ‘blow job’, which the 21^st Century Chambers Dictionary explains as a coarse slang meaning an act of oral stimulation of the male genitals. The Complainant was shocked and petrified. He kept on saying no but could not move as the Appellant was in the process of penetrating his anus. The Complainant then put his hand behind him and that is how the Appellant discontinued the anal penetration. The Complainant went to the hostel feeling filthy.

[11] When the Complainant saw the Appellant subsequently, the Appellant would wear a nasty smile that seemed to say that even if the Complainant could report the incident, nobody would believe him, given the Appellant’s respectability. It came to the point where the Complainant could not bear the effect of the whole act and the nasty smile anymore. He approached two female teachers after a Life Creativity lesson which was about molestation, who then took him to the principal. That is how he reported this incident, some two or three days after the incident.

[12] The third Complainant (Machiel Christiaan Prins) was the Appellant’s marathon running mate. The Appellant is his former school teacher at Stella. He went to the Appellant’s house to make enquiries about some running-related issues. While he was sitting in the lounge, the Appellant closed the curtains. The Appellant then sat next to the Complainant and began to stroke his legs saying that he should not worry. He then loosened the Complainant’s trousers, touched the Complainant’s private parts and asked the Complainant to also touch his. The Complainant also touched him a bit and stopped. The Complainant was 20 years old at the time and the incident never happened again.

[13] The 51 years old Appellant admitted to the visits and the taking of his and de Bruyn’s nude photographs, but denied that any alleged indecent act complained of by the Complainants took place. He questioned the delay in reporting the incidents to the police. He went on to say that for the 25 years that he had been a teacher at Stella, there has never been any complaint of this nature levelled against him. The Appellant also challenged the search without a warrant and indicated that his right to legal representation was not properly explained before his house was searched.

THE ISSUES

[14] The only issues are whether there was any contact of a sexual nature between the Appellant and the three Complainants, which amount to indecent assault and whether the sentence imposed is excessively high and induces a sense of shock. I turn now to deal with the legal issue involved, with respect to conviction.

THE LAW

[15] Indecent assault, of which the Appellant was found guilty, consists of unlawfully and intentionally assaulting, touching or handling another in circumstances in which either the act itself or the intention with which it is committed is indecent (S v F 1982 (2) SA 580 (T)). This crime is directed at those who seek, by touching, to engage another person in erotic activity, without the consent of the other person. Usually it involves the touching of the parts of the body that become sexually aroused, particularly the private parts. By convention, indecent assault contemplates some sort of sexual activity falling short of or not involving actual vaginal or anal intercourse. (See Burchell and Milton, Principles of Criminal Law at p.431–434). The conduct attributed to the Appellant must, if found proved, be viewed with these principles in mind.

APPLICATION OF THE LAW

[16] None of the three young men whom the Appellant was found guilty of having indecently assaulted were friends. They did not at any stage share their individual experiences, which are the subject matter of this case, with each other and the question of collusion does not arise. It also sounds ridiculous to suggest that the investigating officer went out of his way to build a non-existent case against the Appellant. Two of them (Prins and de Bruyn) took too long to report the incident owing to embarrassment and shame. Pretorius on the other hand did not take too long to report the incident. They all visited the Appellant at his home when he touched them in the manner set out in their testimonies outlined above. They were all emotional when they testified. The video and documentary material found at the Appellant’s home as well as the photographs taken of him while he was naked and de Bruyn’s nude photographs taken by the Appellant corroborate the Complainants’ version that the Appellant assaulted them indecently. I agree with the Court a quo that notwithstanding the shortcomings and contradictions in the evidence of the Complainants, they were credible witnesses. On their versions, the Appellant touched the Complainants on their shoulders, thighs, body and penises in order to engage them in an erotic activity. The Complainants did not only become uncomfortable, but they objected to what this highly regarded teacher was doing to them. When the Appellant touched, particularly their penises, they became erect and some sexual activity, which in some of the cases actually culminated in carnal penetration, did take place. Consent to these acts cannot, for example, be deduced from de Bruyn’s repeat visitation, which is admittedly difficult to explain. More importantly, the Appellant did not at any stage allege that the young men consented to what they said he did to them. He denied that any indecent act took place.

[17] I am satisfied that the Appellant’s version, in so far as it contradicts that of the State, is not reasonably possibly true. The Court a quo’s credibility findings cannot be faulted. The Appellant’s guilt of indecent assault was proved beyond a reasonable doubt and the convictions therefore stand to be confirmed. I deal with the sentence below.

[18] Two of the Appellant’s victims were 16 and 17 years old at the time of the commission of the offences, whereas one was 20 years old. All of them were young and looked up to the Appellant who was their teacher, more than twice their age, whom they and the Stella community held in high esteem. The Complainants trusted and respected him and he was in a child-parent relationship with the Complainants, which he exploited and abused.

[19] Each offence was serious, particularly since evidence that penetration took place exists. It is important to note that the Appellant has committed several acts of sodomy and more than one act of indecency on different dates in respect of de Bruyn. Yet, he was convicted and punished as if he only committed one act. Evidently, all the victims were traumatised. The sentence of six years imprisonment imposed in respect of the three counts of indecent assault, taken together for the purpose of sentence, does not induce a sense of shock and is in fact within the guideline that has been set for this kind of offence in the past. The fact that the total sentence imposed on the Appellant comes to 6 years, does not, in my view, result in an unduly excessive sentence. It is not a heavy sentence but one warranted by the facts and circumstances of this case. (See S v Myburgh 2007 (1) SACR 11 (W)). Child molestation is increasing in this country. No wonder it has even reached the more rural areas of the country such as Stella.

[20] Taking all the facts and circumstances into account, I cannot find any ground for interfering with the Magistrate’s sentence. In the result, the following order is made:

a) The appeal against conviction and sentence is dismissed and the conviction and sentence are confirmed;

b) To the extent that this has not been done, the Department of Correctional Services is requested to place the Appellant in a correctional facility where he can participate in a programme in which he will receive treatment for his apparent psychological condition; and

c) The Director of Public Prosecutions is requested to serve a copy of this Court order on the officer in charge of the correctional facility where the Appellant is presently detained.

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M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

I agree

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K. MAKHAFOLA

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 29 JUNE 2007

DATE OF JUDGMENT : 06 SEPTEMBER 2007

COUNSEL FOR APPLICANT : ADV J.J. STRYJDOM

COUNSEL FOR RESPONDENTS : ADV C. MTENGWANE

ATTORNEYS FOR APPLICANT : BOTHA COETZER SMITH

ATTORNEYS FOR RESPONDENTS : DIRECTOR OF PUBLIC PROSECUTIONS

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