IN THE NORTH WEST HIGH COURT
MAHIKENG

CA 42/2014

In the matter between:

LEONIE GERALDINE SHELDON-LAKEY			 APPELLANT

And

THE STATE								RESPONDENT

CRIMINAL APPEAL

GURA J & KGOELE J

DATE OF HEARING		:	20 MAY 2016
DATE OF JUDGMENT		:	14 JULY 2016

FOR THE APPELLANT        : 	Adv. C Zwiegelaar
FOR THE RESPONDENT	:	Adv. M.F. Rasakanya

JUDGMENT

KGOELE J:

[1]	The appellant, a married female, was convicted on a charge of committing an act of consensual sexual penetration with the boy child (the victim), who was a person under the age of 16 years in contravention of section 15(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (The Act) in the Regional Court held at Mahikeng.  She was sentenced to four (4) years imprisonment.  She successfully petitioned this Court on both conviction and sentence, hence this Appeal.

[2]	At the time of the commission of the offence, the appellant had been employed as a temporary educator at the same school where the victim was a learner.  She was teaching Grade 9, 11 and 12 whereas the victim was in Grade 10.  It has been alleged that the offence which forms the subject matter of the Charge the appellant was convicted of was committed during February 2012.

[3]	According to the facts that were before the Court a quo, the relationship between the appellant and the victim started during counselling sessions which the appellant offered to render to the victim as agreed to by his biological mother (the complainant) and the other educators at the school.

[4]	The complainant’s version is that at some point in time she started suspecting that there was something more than ordinary counselling sessions that was taking place between the appellant and the victim. Amongst other reasons she cited was the duration of the sessions, the fact that the victim was coming home very late and becoming uncontrollable in his behaviour.  She ended up retrieving his cellular phone and found therein certain pictures of both of them together including messages from the appellant which were of concern to her.  When the appellant was confronted with this information, she admitted to having sexual intercourse with the victim.  She eventually apologized for her misconduct and resigned from her employment in December 2012.

[5]	The appellant was as a result of this conduct arrested, charged and pleaded not guilty to the charge levelled against her.  In her plea she admitted having committed an act of sexual penetration with the victim with his consent and that he was at the time under the age of 16 years.  She relied on the defence in section 56(2)(a) of the Act in that the victim deceived her into believing that he was 16 years or older and further that, she at the time reasonably believed that he was indeed older than 16 years.  According to her she only became aware that this was not the position when his mother furnished her with the victim’s birth certificate to enable her to make a flight reservation for him.

[6]	The Court a quo rejected her defence and convicted her as charged.

[7]	The following are not in dispute in this matter:-

•	  That appellant had a consensual sexual intercourse with the victim at her place during February 2012;
•	  That both appellant and the boy had an educator-learner school relationship at the same school;
•	  That the victim had a psychological problem / depression that was affecting his school performance;
•	  That during the counselling session a love relationship ensued between them;
•	  That appellant showered the victim with gifts and even invited him to a Restaurant (Wimpy) during the counselling sessions;
•	  That appellant continued the sexual relationship with the victim even after receiving a copy of his birth certificate from the complainant while they had gone to Cape Town;

[8]	The main issue in this Appeal is therefore whether the appellant was deceived by the victim or not to believe that he was 16 years or older and whether she at the time reasonably believed that he was 16 years or older as contemplated in Section 56(2)(a) of the Act.

[9]	Advocate Zwiegelaar on behalf of the appellant submitted that it was not for the appellant to prove that she was deceived by the victim to believe that he was sixteen years or older and further that she reasonably believed that this was so.  According to Advocate Zwiegelaar appellant only had an evidential onus to raise the defence and to lay a factual foundation for the existence of the belief.

[10]	To expand on this proposition Advocate Zwiegelaar submitted that the Court a quo erred in accepting the victim’s viva voce evidence that he had told appellant that he was 15 years old initially during counselling and at a later stage when they were having lunch at the Wimpy Restaurant.  According to Advocate Zwiegelaar there was no basis for the Court to have made this finding.  Her reasoning is that the victim did not mention this discussion in his written statement.  When the victim was confronted with this, he indicated that he did mention it but did not realise that it was not included in his statement because the statement was not read to him.  It is Advocate Zwiegelaar’s further submission that the failure by the State to call the police officer who took down the statement is crucial and the Court a quo could not have relied on this part of his evidence which was not corroborated by a written statement.

[11]	In addition to the above Advocate Zwiegelaar submitted that there was no reason for the appellant to have asked about the victim’s age because:-

•	She was not a professional counsellor;
•	She was not concerned about it at that stage as she only concentrated on the emotional well-being of the victim and wanted to talk about what hurt him and then explain to him how Christ could help him;
•	His profile picture on the social media depicted that he was 17 years of age;
•	Appellant demonstrated some form of maturity to her during their conversation and interaction with each other and did not compare with his other peers;
•	His physical build also stood out amongst his peers.

[12]	To bolster the above argument Advocate Zwigelaar submitted that there was nothing improbable in the appellant’s version and that even if it could be said that it was strange for her not to ask the victim during counselling about his age and during their conversation at Wimpy Restaurant, it could not be said to be so improbable that it cannot be reasonably possibly true.

[13]	Advocate Zwigelaar urged this Court to bear in mind that although the appellant had a certificate and a Diploma in Theology which covers counselling as well as Ministry, the appellant did not have any formal counselling qualifications.  Her training in that regard only assisted her to listen to persons such as the victim with the aim to advise and encourage them Biblically.  

[14]	Advocate Zwiegelaar further urged this Court not to lose sight of the fact that according to the victim the appellant told him immediately after they had sexual intercourse with each other that she regretted it and that she could lose her job and license to teach.  According to Advocate Zwiegalaar, it is of significance that the victim did not testify that the appellant also made mention of the fact that she was running the risk of being prosecuted for having committed an act of consensual sexual penetration with him whilst he was under the age of 16 years.   She maintained that it is highly unlikely that the victim told the appellant that he was under the age of 16 years as claimed by him.  If he did, Advocate Zwiegelaar submitted, the appellant could have also mentioned to him the fact that she could be criminally prosecuted for having had sexual intercourse with him.

[15]	In as far as the build and demeanour of the victim is concerned, Advocate Zwigelaar submitted that the learned Court a quo’s findings appear to be doubtful as the Court a quo had very limited if any opportunity to make observations in that regard because the victim was seated next to the stenographer directly underneath the bench with his back towards it and actually facing the public gallery when he testified.  It is her submission that the Court a quo was therefore not suited to make the finding about his build and demeanour. 
	
[16]	Advocate Zwiegelaar concluded by submitting that the fact that there was no evidence adduced by the State to show that there was indeed records of the victim at the school which she could have accessed to verify his age; that no attempt was made by the State to lead evidence to refute the appellant’s evidence that she considered the victim’s stature to be bigger than the rest of his class; inclusive of the fact that the victim came across as mature during the interaction they had, should have persuaded the Court a quo to find in her favour that her version that the victim deceived her to believe that he was 16 years or older was reasonably possibly true. It is Advocate Zwiegelaar’s contention that the appellant had laid a sufficient factual foundation for the existence of her belief that the victim was 16 years or older.  

[17]	The respondent’s Counsel, Advocate Rasakanya on the other hand submitted that the Court a quo correctly rejected the defence of the appellant.  Her reasons are that the defence is only open to somebody who did not have the required time and opportunity to do her or his internal investigations or homework with regard to the age of the victim.  It is open to someone who met the victim at a Tavern or a night club/shebeen.

[18]	It is important to mention at the beginning of my analysis that appellant is not a lay and/or an illiterate person.  Besides her being a teacher by profession we are told that she, sometime back, had enrolled for B. Proc. Degree and has also a Diploma in Theology.  All these put her on a scale above an average person in as far as her thinking and or intellectual capacity is concerned.  Her being in an educator-learner school relationship with the victim pre-supposes that extra vigilance should be exercised in the issues of relationship with school children, irrespective of what type of relationship.

[19]	I fully agree with the respondent’s Counsel that the Court a quo made a correct finding by rejecting the appellant’s defence in the circumstances of this case.  Although the appellant was not a professional counsellor/therapist, I find it strange that she could embark on the exercise of counselling a learner without establishing his/her age.  Her reason that she only wanted to show and make the victim understand that God will help him Biblically does not exonerate her.  Instead, it is one of the reasons why she should have started by enquiring and verifying the age of the victim.  Age is also important in discussing religious beliefs with children. It is even more so when dealing with emotions of children.  In addition, she admitted during cross-examination that from the backdrop of her studying a law degree she knew that the age of a child is important in as far as relationships are concerned.  The appellant nevertheless besides counselling the victim without verifying his age, recklessly proceeded to an extent of falling in love with him without verifying his age first and ended up having sexual intercourse with him.

[20]	What compounds the matter further is that she also admitted during cross examination that at some stage they did discuss the victim’s age and birthday before they fell in love but she was content when the victim told him that he was 16 years of age.  If she did not see the need for her to verify the age of the victim at the time she started the counselling sessions, then this was the perfect opportunity for her to have done that when she realised that she is having feelings for him.  There is no reason given by her why she did not verify even at this stage.  It is even disturbing to hear from the appellant that she was the one that started telling the victim who was a scholar at a high school and not tertiary level by then, that she had feelings for him.  It matters not that the victim also responded positively.  The argument of the appellant that the police officer should have been called by the State to clarify what appellant told him does not take this matter further as she admitted that they discussed his age at some point.

[21]	It also appears from the record of proceedings that from her own version the 17 years depicted on the social media by the victim was quickly dispelled by the victim when she asked him about it when they were at Wimpy.  Sight should not be lost of the fact that the issue of the age appearing on the social media which allegedly deceived the appellant was also not tested as it emerged after the victim had finished testifying.

[22]	The submission by the appellant’s Counsel regarding the body stature/build of the victim being taller than his peers and answering maturely when questions posed to him does not assist the appellant at all.  This includes the other leg of this issue relied upon by the appellant to the effect that the Court a quo could not have observed the structure of the victim properly because of the position where the victim was testifying from.  My reasons are that the appellant knew that the victim was in Standard 10. As an educator one will have expected her to know that the possibility of him being still under 16 exists.  On the same breath, if we accept her version that he spoke maturely and his built is above his peers, coupled with the fact that he was still doing Standard 10, there were therefore in my view more reasons that called for her eyebrows to be raised.  In my view, as correctly submitted by the respondent’s Counsel, she foresaw the possibility that the person she was falling for might be under the age of sixteen years but nevertheless reconciled herself with it and allowed herself not to be deterred from having sexual intercourse with him.   One must bear in mind that the counselling took place over a considerable time.  At some stages it occurred even at the home of the appellant when there was no one.  The counselling furthermore included the giving of gifts and taking him for lunch in the afternoon after school hours.  All of this constitutes a rare commodity of events in counselling sessions, especially for a matured child as the appellant wants to portray.  The appellant was placed in a position of utmost trust to the well-being of the victim.  She manipulated the vulnerability of the victim and betrayed that trust.   On a proper reading of the record there is every reason to agree with the conclusions of the Court a quo regarding the acceptance of the evidence of the victim and the rejection of the appellant’s defence. 

[23]	The other ground relied upon by the appellant is that the Court a quo erred in reaching a conclusion that the consent by the victim to the act of sexual penetration was neither voluntary nor uncoerced.  This ground arose from the following remarks by the Court a quo which are found in paginated page 257 line 16 – 24:-	

“In the court’s opinion the Wimpy lunch and wrist belts were direct or indirect gifts to the victim by the accused.  The gifts were forced crisis, that in they were, falling under a system of gifts or privileges being awarded as a reward for compliant behaviour by the victim to sexual relations.

The victim’s compliance to the first act of sexual intercourse with the accused, was actually a direct result of the accused’s calculated distortion of authority as an educator and as counsellor of the victim in order to weaken the victim’s resistance.”

[24]	I fully agree with the appellant’s Counsel that these remarks were unwarranted:  My reasons are:-
•	  The charge against the appellant was as stated in paragraph 1 of this judgment one of committing an act of consensual penetration with a person who is 12 years older but under the age of 16 years as contemplated in section 15(1) of the Act;
•	  It has been alleged in the charge sheet that the act of sexual penetration was committed by the appellant with the consent of the victim and; 
•	  The victim has testified during his evidence-in-chief that the appellant did not do anything to him or forced him in any manner to have sexual intercourse with her, but that he voluntarily had sexual intercourse with her, that he proposed love to her and that they were lovers as that time;
•	  It seems the learned Trial Court sought to rely on the provisions of section 1(2) and 3(b) of the Act which reads as follows:-

“(2) 	For the purposes of sections e, 4, 5 (1), 6, 7, 8(1), 8(2), 8(3), 9, 10,12, 17(1), 17(2), 17(3)(a), 19, 20(1), 21(2), 21(3) and 22, “consent” means voluntary or uncoerced agreement.
(3)	Circumstances in subsection (2) in respect of which a person (“B”) (the complainant) does not voluntarily or without coercion agree to an act of sexual penetration, as contemplated in section 3 and 4, or an act of sexual violation as contemplated in sections 5(1), 6 and 7 or any other act as contemplated in sections 8(1), 8(2), 8(3), 9,10,12, 17(1), 17(2), 17(3)(a), 19, 20(1), 21(1), 21(2), 21(3) and 22 include, but are not limited to, the following:-
(a)	  	…;
(b)	 	Where there is an abuse of power or authority by A to the extent that B is inhibited from indicating his or her unwillingness or resistance to the sexual act, or unwillingness to participate in such a sexual act; …”

•	It is clear from the provisions of section 1(2) and 3(b) above that it is not applicable to section 15 of the Act;
•	The victim testified that he was not forced to have sexual intercourse with the appellant.

[25]	The finding of the Court a quo in this regard is a factual one which is clearly wrong and the Court is entitled to interfere with it.  But despite this, I am of the view that the misdirection alone cannot vitiate the whole proceedings taking into consideration the analysis that I had made above on the other grounds relied upon.  The appeal on conviction has to fail.

[26]	In as far as sentencing is concerned, the appellant raised a myriad of grounds which when summarised boils down to the following:-

•	The Court a quo disregarded the probation officer’s recommendation for a correctional supervision;
•	The Court a quo found that the term of direct imprisonment is the only appropriate sentence;
•	The Court a quo found that the aggravating circumstances outweighs the mitigating factors of the appellant;
•	The Court a quo remarked during sentence that rape is a serious offence whilst the appellant was neither charged nor convicted of the offence of rape as contemplated in section 3 of the Act;
•	The Court a quo failed to assess the moral blame-worthiness of the appellant on the basis that the victim has voluntarily and uncoerced agreed to have sexual intercourse with her.

[27]	Although the appellant indicated that he relied on one or more or all of them, I chose not to analyse them one by one in this judgment because most of them are either a repetition of others, supports the others and or are not worth mentioning.

[28]	The personal circumstances of the appellant were summarised by the Court a quo and need not be repeated in this judgment. While this Court is aware that although Section 15 of the Act declares the conduct of the nature as set out in it as an offence, it does not provide for any penalty for the contravention thereof.  It is of importance to note that this section replaces with minor amendments Section 14 of Act 23 of 1957 (the Old Act).  It broadened the offence to be gender non-specific.  In my view, the maximum sentence provided for in Section 22(f) of the Old Act would still serve as a useful guide as to what the legislature viewed as an appropriate sentence for the worse kind scenario for this particular offence.  For this offence, Section 22(f) prescribes a sentence of imprisonment for a period not exceeding six (6) years with or without a fine not exceeding R12 000 in addition to such imprisonment.

[29]	While due weight must be given to the appellant’s personal circumstances, the offence she committed remains a serious one.  Sexual offences are prevalent in our society.  The legislature, reflecting social morals of the society enacted legislation in an attempt to curb sexual intercourse between adults and children and for good reasons.  Right thinking members of the society expect adults to protect children, not to abuse them.  The exploitation of emotionally immature children and the risks of sexually transmitted diseases is a cause for serious concern.

[30]	In our matter, the offence pertains to an instance of consensual intercourse between a 39 years old woman, who is married and a school boy of at least 16 years at the time of the commission of the offence.  The fact that the appellant was in a learner-educator relationship with the child aggravates the matter.  What compound the matter further is that the sexual encounter occurred more than once even after the appellant received the birth certificate of the victim.  The offence was committed by a person who clearly knows what the law and the spiritual scriptures say about morality.

[31]	I had the liberty of looking at the trend of cases wherein accused were convicted of Section 15(1) of this Act.  The following may be cited as an example:-
•	Godfrey Nelson v The State, an unreported Western Cape High Court Case No. A250/10 delivered on 8 February 2011;
•	Geldenhuys v The State [2008] 3 All SA 8 (SCA);
•	Gwadi v The State [2014] JOL 31687 (ECG).

A single thread that runs through all of them is that a custodial sentence was imposed in one form or the other even though the perpetrators were first offenders.  Furthermore, in all of them the perpetrators had served some considerable length of time in custody prior sentencing which is not the case in our matter as the appellant is even at the present moment on bail.  I am thus not persuaded that the sentence by the Court a quo is totally out of proportion to the magnitude of the offence or is disturbingly inappropriate.  There is furthermore nothing on the record of the proceedings that indicates that the Court a quo exercised its discretion unreasonably. 

[32]	The correctional supervision sentence suggested by the appellant’s Counsel together with the probation officer would be wholly inappropriate in the circumstances of this matter and in my view the Court a quo correctly rejected it. The sentence imposed upon the appellant must clearly indicate that sexual intercourse by an adult with a child will not be tolerated.

[33]	In the result the Appeal against conviction and sentence is dismissed.

________________ 
A M KGOELE
JUDGE OF THE HIGH COURT

I agree

________________
SAMKELO GURA
JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPELLANT		:	Maree & Maree Attorneys
11 Agate Street
Riviera Park
MAHIKENG							
FOR THE RESPONDENT		:	Director of Public Prosecutions 
							Megacity Shopping Complex
							East Gallery
Corner Sekame and Dr James Moroka Drive,
MMABATHO