WJC and Another v S (A112/2022) [2024] ZAGPPHC 328 (11 April 2024)

1 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: A112-2022 REPORTABLE OF INTEREST TO OTHER JUDGES REVISED DATE: 11/04/2024 In the matter between: WJC FIRST APPELLANT ZC SECOND APPELLANT and THE STATE RESPONDENT ORDER The following order is made: The appeals against convictions and sentences of both appellants are refused. MINORITY JUDGMENT Greyvenstein AJ Background 2 [1] The Appellants are respectively the biological father and mother (hereinafter referred to as the 1 st and 2nd Appellant) of their girl child (hereinafter referred to as LA) and their boy child (hereinafter referred to as AJ), who were respectively five and eight years old at the time of the alleged commission of the offences in 2014. [2] The Appellants were charged in the Regional Court of Pretoria North in case number SH1/61/2015 with the following counts: Count 1: c/s 3 of The Sexual Offences and Related Matters Act, Act 32 of 2007 (hereinafter referred to as “SORMA”) – rape of LA; Count 2: c/s 3 of SORMA – rape of AJ; Count 3: c/s 5(1) of SORMA – sexual assault of LA; Count 4: c/s 18(2)(b) of SORMA - sexual grooming of LA; Count 5: c/s 4 of SORMA – compelled rape of AJ; Count 6: c/s 21(1) of SORMA - compelling LA to witness sexual offences, sexual acts or self-masturbation; Count 7: c/s 24B(1)(b) of the Films and Publications Act, Act 65 of 1996 – creation of child pornography; Count 8: c/s 305(3)(a) or (b) or 305(4) of the Children’s Act, Act 38 of 2005 (hereinafter referred to as the Children’s Act) – child abuse or neglect. It is important to note that the chargesheet makes mention that the charge is c/s 305(3)(a) or (b) or 305(4) of the Children’s Act; Count 9: assault with the intent to cause grievous bodily harm in respect of LA; Count 10: assault with the intent to cause grievous bodily harm in respect of AJ; Count 11: c/s 4(a)/4(b) of Act 140 of 1992 – possession of an undesirable dependence producing substance (metcathinone [sic] and dagga)1. 1 It is unclear what the charge was. According to record of proceedings, the State put a charge of c/s 4(a) of the mentioned Act, but also added that the state “focusses on 4(b)”. Section 4(a) of the mentioned Act relates to the dealing in such substance and not with the possession or use thereof. It will be accepted that the State erroneously referred to section 4(a) of the mentioned Act. 3 [3] On 24 January 2017, both Appellants were found not guilty and discharged in terms of section 174 of the Criminal Procedure Act, Act 51 of 1977 on counts 9 and 10. [4] On 5 August 2020, both Appellants were convicted on counts 1, 3, 4, 5, 6, 8, 11 and acquitted on counts 2 and 7. [5] On 2 February 2021, both Appellants were sentenced to life imprisonment in terms of section 51(1) of Act 105 of 1997 on counts 1 and 5 and both Appellants were sentenced to various terms of direct imprisonment on counts 3, 4, 6, 8 and 11. [6] Both the Appellants are before this Court on appeal against their convictions and sentence on counts 1, 2, 3, 5, 6 and 8. Both Appellants already conceded during the trial that they are guilty of the possession of undesirable dependence producing substances as alleged in count 11. [7] It may be mentioned at this stage that both Appellants were acquitted on count 2 and reference to a conviction on count 2 in the notice of appeal and other papers before this Court is wrong. [8] It may also be mentioned that the Appellants were convicted on count 4 (sexual grooming in contravention of section 18(2)(b) of Act 32 of 2007), although the notice of appeal does not mention this conviction. From paragraph 9.3 of the notice of appeal it is however clear that the appeal is noted against the conviction on count 4 as well. Grounds of appeal2 [9] That the learned Regional Magistrate erred in finding that the State had proved beyond reasonable doubt that both Appellants are guilty; 2 Page 1012 and forward of Volume 8 4 [10] That the learned Regional Magistrate erred in finding that LA was a competent witness; [11] That the learned Regional Magistrate erred in accepting the evidence of LA; [12] That the evidence of LA falls short of being reliable and trustworthy to the extent that her evidence can be accepted beyond reasonable doubt; [13] That the learned Regional Magistrate was under the wrong impression that he could not adjudicate the competence of LA again at the end of the trial; [14] That the learned Regional Magistrate wrongly found that LA gave a clear and graphic description of the sexual activities that took place in respect of what LA and AJ had to do and what the others that were involved did to LA and AJ; [15] That the learned Regional Magistrate concluded that the object used to penetrate LA was a sex toy, which is not true; [16] That the learned Regional Magistrate did not deal with the contradictions between the report witness, Ms Estelle Smith and LA; [17] That the learned Regional Magistrate misdirected himself to find that Dr Lukhozi’s evidence is partly corroboration for the evidence of LA; [18] That the learned Regional Magistrate erred in finding that the evidence of LA during the trial was consistent with her original accusations; [19] That the impression is created that the learned Regional Magistrate misdirected himself in that section 28(2) of the Constitution, Act 108 of 1996 (hereinafter referred to as the Constitution), altered the onus of proof where a child is the complainant in a sexual misconduct case; 5 [20] That the learned Regional Magistrate erred in finding that police witnesses were not confronted with the version of the 2 nd Appellant that the police only took photos after they had thrown the clothes out of the cupboards; [21] That the learned Regional Magistrate erred in accepting the evidence of Dr du Toit as admissible, that her report is admitted by agreement and by accepting her evidence; [22] That the learned Regional Magistrate erred in relying on the opinions of the police officers that the children were abused, while they were not experts in that field; [23] That the learned Regional Magistrate wrongly convicted the Appellants of a contravention of section 305(4) of the Children’s Act; [24] That the learned Regional Magistrate erred in finding that the state’s evidence proved deliberate neglect; [25] That the learned Regional Magistrate erred in finding that the evidence of the Appellants and their witnesses must be rejected because he accepted the evidence of the State; [26] It is apparent from the papers and the address on behalf of the Appellants in this court, that they will not pursue the appeal against the sentences imposed, should the conviction be confirmed. The evidence [27] The allegations are that the Appellants, committed these horrendous crimes in 2014 against their biological children, LA and AJ, while the children were respectively five and eight years’ old. 6 [28] The Appellants pleaded not guilty and elected to remain silent. [29] The only witness called by the State that gave direct evidence about counts 1 to 7 (all relating to crimes of a sexual or pornographic nature) was LA. [30] LA gave her evidence with the assistance of an intermediary who was appointed in terms of section 170A of the Criminal Procedure Act, Act 51 of 1977 (hereinafter referred to as the CPA). The provisions of section 170A(3) of the CPA were applied, resulting in LA not being exposed to the Court room and the proceedings inside the Court room. She was in an environment that is child friendly in the company of an intermediary. [31] LA was questioned by the learned Regional Magistrate and thereafter admonished to speak the truth in terms of section 164 of the CPA. [32] LA referred to the Appellants as “oom” and “tannie” and testified that they are her “Ma en Pa”. “Oom” is the 1 st Appellant and “Tannie” is the 2 nd Appellant. She referred to Estelle Smith as her “mamma”. She testified that her surname is Smith, and she does not know the surname of the Appellants. [33] LA testified that she lived in the house with the 1 st and 2nd Appellants, AJ and two other people. [34] She testified that the 1 st Appellant told her to suck his “tollie” and to rub it up and down and to swallow the “piepie”. It tasted like bad jelly. Thereafter she testified that the 2 nd Appellant told her to suck the “tollie” of the 1 st Appellant and that the 2 nd Appellant showed her how to suck it. [35] She testified that the 1st Appellant put a stick into her “parrakoekie/piepieplek” and then all the blood came out of her “piepieplek”. She later testified that her parrakoekie 7 is the place she uses to urinate. She described it as a long brown stick with a sharp end that he got from a tree next to the house. The Court estimated the length indicated by the complainant as between 15- to 20 cm. During this incident the 2nd Appellant, AJ and the friends of the 1st Appellant were present. [36] She testified that herself and AJ had to take off their clothes and AJ had to lie on top of her while she had to shake (on the bed of the 1st Appellant). [37] She testified that the 1 st Appellant would press her hard on her shoulders so that she could not get up, and then he would put a stick in her bum’s hole. It was painful. [38] She testified that she was at the doctor with the 1 st Appellant where the doctor looked at her “parrakoekie” while the 1st Appellant took photos. [39] Thereafter she said that she had to lie on the bed, with AJ on top of her while the 1st Appellant took photos with a camera and with a phone. This happened many times. [40] Thereafter she testified that she had to dance while she lay naked when the 1 st Appellant took photos of her. This happened in the presence of AJ and the 2 nd Appellant. AJ’s “verkeerde plekkie” was also photographed while he was naked and had to dance. She testified that the 1 st Appellant put the photos on a cd and gave it to his friends. [41] She testified that she had to lick and suck the “piepieplek” of the 2 nd Appellant while the 1st Appellant watched. [42] She testified that AJ also did nasty things to her by putting his “tollie” into her mouth and her bums and she also had to suck it and rub it. This was done on the instructions of the two Appellants. 8 [43] When LA was asked how it happened that she left her home, she answered that they found a lady near where Aunt M stayed. She testified that they were found alongside the road where they were walking. They walked away as they did not want to live in the house of the Appellants anymore. She was twice asked why they decided to go away, and twice she answered “Daarso in ons kamer”. The third time the question was repeated, she answered that the 1 st Appellant said that they must “fuck off and leave the house” and the 2 nd Appellant said “fokkof and kaffermeid” to herself and AJ. She and AJ then packed goods and walk away as they were sworn at. They slept under a tree and ate hamburgers. They bought the hamburgers at the hamburger place. [44] She testified that there was no food in the house, and no one looked after her during the day. [45] Exhibit C, consisting of page 1 (photos 1 – 4), page 2 (photos 7 – 10) and page 6 (photos 19 – 22) was shown to the complainant. She testified that she could remember that the photos on page 1 were taken by the Appellants when she had to stand nicely and smile. She identified AJ on page 3. On page 6 she identified a red suitcase with her shoes and dress inside, as well as Mc Donalds and a shirt. She and AJ packed the suitcase, closed it, and walked away. [46] Exhibit D photos 5 and 6 are photos of the house that she lived in with the Appellants and others, and a tree. Photo 10 is a photo of the place they slept at, watched television, and got food. Directly thereafter she stated that there was no food in the house, no fridge, and no electricity. [47] The witness was asked numerous times to tell the Court what happened in the room. The intermediary informed the court that LA was emotional. Upon asking LA for a fifth time what happened in that room, she responded that the 1 st Appellant and R bought medicine that they put into a thing and injected it into her arm, and her legs. LA later described the apparatus used to inject the medicine. She testified that it was painful when the medicine was injected. The learned Regional Magistrate tried to 9 establish what the effect of the injected medicine was, but she continued to testify that blood came out, it was painful and made her feel bad. [48] LA was again asked what she had to do in that room, whereupon she responded that she had to clean the house as it was dirty. [49] LA identified photos 18 to 20 as photos of the room in which she slept with AJ. She pointed out the bed on which she slept. The intermediary described the bed in the photo as a wooden bed without a matrass full of toys. [50] LA identified photos 31 and 32 as photos of the room of the Appellants. She was asked by the prosecutor if she could tell them one thing that happened in that room. LA did not respond to the question and was asked by the intermediary if she should help her and again asked if she could tell us one thing that happened in that room, whereupon the learned Regional Magistrate intervened and said that they could leave it there. [51] During cross examination of LA, the defense attorney put it to her that they did not run away from home on the day in question, but that they went to buy a “braaiertjie” for the 1 st Appellant. It was put to her that the 2 nd Appellant went searching for them and she phoned the police. The witness denied the truth of the statements. [52] It was put to LA that nothing of what she spoke of, happened to her, that she was not penetrated with a stick, fingers, or a penis and that she did not have to lick anyone. She responded that he was lying. [53] She testified that everything happened on one day, long before she and AJ ran away. [54] She testified that AJ was present when these things happened to her. 10 [55] She testified that when photos were taken of her while she was naked, they would put a sticker on, which they would take off and then you see a naked girl. [56] She was confronted with the fact that the police found no photos of naked children on the computers of the 1 st Appellant to which she responded that he was lying. [57] She confirmed that she and AJ bought hamburgers at Mc Donalds and on a question where they got the money from to buy the hamburgers, she responded “Ons het geld gekry op by ‘n masjien ding sien hulle nommers, dan is daar ‘n rooie en ‘n groene, hulle tik net die nommers in”. [58] It was put to her that there is no Mc Donalds close to where they lived, and that the nearest Mc Donalds is very far from their home. She denied it. [59] During further examination by the learned Regional Magistrate, LA testified that she does not know how long a day is, that they walked for more than a day when they ran away from home. [60] Mrs. Smith testified that she became the foster parent of LA on 5 September 2014, which is a month after the children were found during the day near a park. According to her, LA was neglected, nervous, and very scared. [61] She testified that at different stages, LA opened and made reports to her. The first report was about a week after she was placed in her care. At that stage, LA told her that “Pa W...” hurt her by bighting her on her “verkeerde plekkie” and by urinating on her. He took off her clothes and made her lie on her stomach on the bed in the room. He pushed a stick into her from behind. During the incident she was home alone with the 1 st Appellant. He also put her hand on his “verkeerde plekkie” and wi th his hand over her hand made frontwards and backwards movements to stimulate him. He also 11 put his penis in her mouth and told her to drink it and not spit it out. She also told her that she wiped up the blood that went down to her feet. [62] A few days or a few weeks later, LA made a second report to her. By then she referred to her mother as “Tannie Z...”. She reported that the 2 nd Appellant told Rouche to insert her fingers into the complainant while the 2 nd Appellant took photographs. They did the same to another boy child, hereinafter referred to as A. The people in the lounge were laughing. She further stated that Bianca also inserted her fingers into her, and that A was crying. She further reported that the 1 st Appellant inserted his “piepieplek” into A and the blood was flowing. She further reported that both Rouche and Bianca took photos with their cellphones. LA was very emotional and was crying when she made the report. She is not sure if she was told anything else as she was praying that the gruesome information that she received must vanish from her head. [63] Mrs. Smith testified that at a later stage LA also told her that A’s father drove with the 1 st Appellant to buy medicine. Upon their return they injected her first into three places and thereafter they also injected AJ and A. Then the 1 st Appellant hurt A until the blood was flowing, and A’s father hurt her until the blood flowed. [64] Mrs. Smith also testified that LA reported to her that on some days, the 2 nd Appellant would open the pants of the 1 st Appellant, take out his penis and suck it, and then instruct her to also suck it. She also reported that A would stand in front of the 1 st Appellant, he would bend forward, and the 1 st Appellant would insert a stick into him. She further reported that the 2 nd Appellant would let her undress and lie on the floor on her back. The 1st Appellant would also stiffen the “verkeerde plekkie” of A with a stick and make him lie on top of the complainant and assist him to put his “tollie” in her “verkeerde plekkie” while either of the 1 st and 2 nd Appellant would take photos. She further reported to her that the 1 st Appellant and the father of A would put cream or ointment on the children’s arms and hands and then push it into the private parts of the women. 12 [65] In respect of the stick that the victim reported on, Mrs. Smith testified that LA used the word stick, and she later described the stick as a brown object about the length of half a ruler and about as thick as an R5 -coin. It had an on/off button and the stick shook. [66] The witness was asked if she could deduce if there were more than one stick and the witness responded “Nee, daar was ‘n klomp stokke in die laai en haar pa se hand wapen”. [67] During cross examination Mrs. Smith disputed the version of LA that she could not remember her surname. [68] Mrs. Smith testified during cross examination that LA was examined by a doctor after the children were found by the police wandering in town. She further testified “… Hulle het toe…. gese daar was ‘n positiewe, sy was by die distriksgeneesheer, dit was positief.”. [69] Mrs. Smith was confronted with the fact that LA testified that all that happened to her, happened in the presence of both Appellants, A others. [70] When Mrs. Smith was asked if AJ would be able to confirm what the complainant said, she responded “… en hulle het hom klaar beinvloed met hulle Sondag kuiertjies by hom”. [71] Mrs. Smith testified that she was informed by LA that the 1 st Appellant loaded the photos onto the computer and it was then transferred onto a CD, which cd’s were given to R and the father of A. [72] Mrs. Smith tendered the evidence that she was informed that LA was placed in her care as the guardian at the Place of Safety battled to keep AJ out of the bed of LA. 13 [73] Mrs. Smith admitted that she searched on Facebook to get more details of the family of the other girl as she deemed it important to have that girl also removed from her home. Once she succeeded in tracing the friends of the 1 st Appellant on Facebook, she asked LA to point out the father of A on photos on the Facebook profile of the 1 st Appellant, which LA then did. [74] Mrs. van Schalkwyk, who is a member of CPF, testified that on 19 August 2014 at about 08h56 she responded to a radio request. She arrived at an open field where she found a silver BMW motor vehicle and saw a boy running. She approached the boy. The boy had a suitcase and a wallet with him. The boy was scared. The remainder of her evidence in respect of what the boy told her, was provisionally admitted on the request of the prosecutor. As AJ was not called to testify, the evidence of what he told Ms van Schalkwyk remains hearsay and inadmissible. A little girl was also found, and the two children were transported to the police station. The girl clung to another lady that arrived on the scene. At the police station the children were given food. They were hungry. She identified the photos in Exhibit C and confirmed that the children that she saw on the day in question were LA and AJ. [75] It was put to Mrs. van Schalkwyk that the Appellants lived with their children in a house, which is a block or two blocks from where the children were found. The witness confirmed that the house is close to the place where the children were found. [76] It was put to the witness that when the Appellants woke up the morning, they discovered that the children were not home, and that the wallet of the 1 st Appellant is missing. [77] Mrs. van Schalkwyk confirmed that there is no Mc Donalds close to the place where the children were found. They had to drive to buy food for the children. [78] Mr. Sarel Venter’s evidence did not take the matter any further. 14 [79] Warrant Officer van Dyk testified that he was on duty when a boy and his younger sister were brought to the police station. The boy had a schoolbag of a local primary school with him and a wallet, and the girl had a vanity case containing a few pieces of clothing. The children seemed neglected. He motivated his observation by saying that it was winter, and they were bare feet, the clothing seemed battered, and the children appeared to be dirty. He spoke to them, and they could not give their residential address to him. [80] He opened the wallet and found an R200 -note and the driver’s license of the father containing his identity number. He succeeded in tracing the address of the parents. [81] He was in the company of Cst Payne and requested Cst Payne to search for the mother of the children, who according to people in the vicinity was on the streets looking for her children, while he went to the residence of the parents. [82] He gained access to the premises, by opening the unlocked gate and entering the unlocked house at the kitchen. There was no one inside the house and he exited the house and waited until Cst Payne arrived with the mother of the children, who is the 2 nd Appellant. She also seemed neglected, and he observed that she was nervous. She told him that they (herself and the father of the children) were searching for the children. [83] The 2nd Appellant granted him permission to enter the house. [84] During his investigation at the parental house, the 2 nd Appellant’s urine was tested, and it tested positive for marijuana and CAT. The evidence relating to the discovery of the CAT residue and the marijuana will not be canvassed further as the conviction on count 11 is not contested. [85] He arrested the 2 nd Appellant on a charge of child neglect and obtained her permission to search the house. The house was untidy and dirty. 15 [86] He discovered four pornographic videos on the top shelve of the father’s cupboard and a box containing sex toys at the shoes. [87] At some stage Cst Payne left the house to pick up the 1 st Appellant. Upon their return he arrested the 1st Appellant for child neglect and the possession of drugs. [88] He found hard drives being scattered. The 1 st Appellant informed him that he repairs computers and informed him that the hard drives contain pornographic material. [89] Upon the arrival of the photographer, he pointed out to the photographer what to photograph. The witness identified Exhibit D and gave a description of each of the photos contained therein. [90] He perceived the room of the girl to be untidy, with no sheets on the bed and a heap of blankets on the bed. There was a sponge matrass against the wall. It was not clean. [91] The room of the boy was battered. There were no sheets on the bed and a blue blanket served as a sheet. The cupboard was untidy. [92] Photo 33 depicts the untidy room of the Appellants. Photos were taken of the sex toys, the pornographic videos and the drugs and drug residue discovered. [93] He also confirmed what is depicted in Exhibit C. [94] During cross examination he confirmed that there was food in the house. [95] He confirmed that it is not illegal to possess sex toys, sex games and adult pornographic material. He seized these objects on the instructions of Captain de Jager. 16 [96] It was put to him that no child pornography was found on any of the cellphones or hard drives that were seized by the police. He could not comment on the statement. [97] He denied a statement that the house was untidy but not dirty. [98] He admitted that the clothes and other goods were taken out of the cupboards during the search. [99] He could not deny the version of the 2 nd Appellant that she had done washing the previous day and still would have covered the beds, but due to the chaos the morning it was not yet done. [100] It was put to Warrant Officer van Dyk that the Appellants were in the process of moving because the owner of the property cut off the electricity. He could not deny the statement. [101] He denied a statement by the defense that the sex toys and drugs were on the top shelve of the cupboard. He testified that the sex toys were between the shoes and the empty bag and the plate with the straw were found on the second shelve from the bottom. [102] During questions by the learned Regional Magistrate, he was asked if the description that he gave of these two children fit the description of children that had just been playing and got dirty, or did it fit the description of neglected children. He responded that it appeared to him that the children were neglected. [103] He opined that the Appellants were not in the process of moving, because he did not find clothes and other goods lying around, he found wires and hard drives lying around. He did not find any indication that they were busy packing to move. 17 [104] Cst Payne testified that on 19 August 2014 he was in the company of Warrant Officer van Dyk when he received information of a lady walking in the street. He found her and enquired if she was searching for her children. She confirmed. He took her back to her house. He later also fetched the father of the children. [105] Cst Payne described the house as untidy and as if the house was cleaned weeks ago. The children’s beds were not made, dirty clothes were lying around throughout the house. There were boxes with goods everywhere. The bathroom and kitchen were dirty, and the dishes had not been washed. He found a half a loaf of bread and jam and a bottle of beer. He described it as dire circumstances. [106] During cross examination it was put to him that the Appellants bought food daily and that they still had to go and buy food the day. He could not comment on the statement. [107] He also denied knowledge of whether the Appellants were in the process of moving. [108] He admitted that the contents of the cupboards were removed from the cupboards before the photos were taken. [109] Ms Strauss, who is the chief executive officer of the Sinoville Crisis Centre, gave evidence which did not take the matter any further in terms of the issues to be considered by this Court. The only relevant evidence is the statement that was made to her by the defense on behalf of the Appellants that the 1 st Appellant phoned the police on the morning of the incident, informing the police that they are searching for their children that went missing. She responded that she had no knowledge of such a call, but she did enquire if any children were reported missing as the children were found wandering around and she was informed that there were no missing children reports. This evidence of Mrs. Strauss is hearsay and inadmissible. 18 [110] Mrs. von Benecke gave evidence of the photographs that she took of LA and AJ on the day in question. Some of the photos were already handed in by mutual agreement, but the defense denied the admissibility of some of the photos on the unfounded basis that the witness received no training to take photos. The learned Regional Magistrate questioned the witness, who responded that the photos reflected in Exhibit C are exactly the picture she saw of which she took a photograph. She saw the children with marks, dirty feet and in a neglected state. She took photographs of the marks, the dirty feet, the items they had with them and the food that the community bought them later. She took photographs of their backs, chest, upper legs, and stomachs. [111] Further photographs were subsequently handed in and formed part of Exhibit C. [112] Dr Lukhozi was called as a state witness. He is a qualified medical doctor who was employed at the Mamelodi Thuthuzela Crisis Centre on 19 August 2014. On the said date he did a medical examination on LA and AJ. [113] In respect of LA, he observed her clothes as clean, and her weight was less than 95% of the girls her age. He observed no injuries to her. [114] He continued with a gynecological examination and established that she was not sexually mature and had not yet started producing physical changes due to hormones of estragon. He observed no injuries to the clitoris, urethral orifice, labia, posterior fourchette and fossa navicularis. The hymen displayed a 3mm opening with no swellings, bumps, or clefts. There were no fresh tears, bruises, or bleeding. There were no injuries to the perineum. He concluded that the genital examination was normal with no injuries or abnormalities. [115] The 3mm opening of the hymen is normal. 19 [116] During the anal examination he found a fissure or crack, which was not fresh. He found no abrasions nor scars and no further tears, bruising, swellings, signs of dilatation or fondling or cupping or any discharge. [117] He concluded that the fissure on the skin does not produce conclusive evidence of penetration however it is suspicious of penetration. [118] Dr Lukhozi also did a medical examination of AJ and found his height and weight to be age appropriate. He also found his clothes to be clean. [119] AJ had a 4 cm abrasion on the back of his left thigh that was healing. AJ informed him that he was scratched by a tiger that attacked him the day before. He also had a non -specific bruise on the left knee and healed scars on the neck which he thought were non-specific. [120] During the anal examination of AJ, he found no injuries, scars, bruises, abrasions, cracks, fissures, fondling, abnormalities, discharges, or cupping. He found good hygiene. He also found no signs of injury during the male genital examination. [121] Dr Lukhozi testified that his finding with regards to the injuries to Andy is that he cannot give a specific manner of causation. [122] Dr Lukhozi responded to the version of LA, namely that at one instance she bled so profusely from her vagina that the blood went down to the ground, that the absence of injuries does not rule out penetration, however as there is no cleft on the hymen, it means that the hymen is not torn, and the bleeding could not have been from the hymen. [123] Dr Lukhozi repeated that the fissure detected during the anal examination is nonspecific, meaning that although it raises suspicion of penetration, fissure is not only caused by penetration. 20 [124] Dr du Toit was called by the State. She has a doctorate degree in criminology which she obtained from the University of Pretoria. She testified that she assessed AJ on request of the prosecutor with the view of explaining the contradictions between his two statements and to establish, if possible, whether the alleged sexual crimes were committed against him. [125] Her assessments took place from February 2016 to March 2016. [126] Her report was received into the record as Exhibit M. [127] It was put to the witness that her report is not disputed by the defense. [128] She recommended that AJ should not testify at the trial as he suffers from complex trauma and had a dissociative reaction as a result thereof. During her assessment, AJ simply refused to answer certain questions, denied that incidents happened and so forth. [129] She had access to other assessments done on AJ and she clearly relied on an assessment of a Dr Corrie Schutte who found that AJ was physically abused and at stages had no food to eat other than bread. She also had access to the statement of LA. [130] She gave an opinion that AJ did not give any information of any wrongdoings due to the trauma that he experienced which caused him to block the experiences from his brain. [131] During cross examination by the defense, it was put to the witness that she merely has an opinion on whether AJ was sexually violated. She denied it. 21 [132] The witness admitted that AJ denied that any sexual offences were committed against him but testified that collateral information to which she had access, and his body language and emotions proved the contrary. [133] It was put to the witness that the defense agrees that AJ cannot testify in the case, but not for the reasons advanced by the witness. It was put to the witness that AJ made a statement to the police that nothing happened to him. She subsequently testified that she is of the opinion that there is too much evidence during the assessment to show that Andy was physically and sexually abused. [134] That concluded the evidence on behalf of the State. [135] The defense brought an application in terms of section 174 of the Criminal Procedure Act, Act 51 of 1977 for the discharge of the Appellants on all the counts, accept count 11, which application was opposed by the State in respect of counts 1 to 8. [136] The application was granted on counts 9 and 10 and dismissed on all the other counts by the learned Regional Magistrate. [137] At that stage, the Appellants terminated the mandate of their legal representative, and appointed Mr. Moldenhauer, who concluded the trial and represented the Appellants in the appeal. [138] Numerous applications were brought on behalf of the Appellants at that stage, including the record to be provided at State expense, the recalling of three state witnesses for further cross examination and the provisions of the hard drives that were confiscated by the State. 22 [139] Although the State originally alleged that the hard drives went missing and could not be found, it was subsequently discovered and handed to the defense. The further applications by the defense were both dismissed by the learned Regional Magistrate. [140] The Appellants continued to present their cases. Both the Appellants testified under oath and the defense also called numerous witnesses on their behalf. [141] The 1 st Appellant testified under oath that he bought into a business of a Mr Smit. Part of his remuneration in terms of their agreement was that Mr. Smit would pay the rent of the house where they resided at the time of their arrest, and he would further be paid R 9 000 per month. Mr. Smit failed to pay the rent of the house, which caused the owner of the property to remove the prepaid electricity box about three weeks before their arrest. They had no electricity at their residence ever since. They agreed with Mr. Smit that Mr. Smit would pawn the bakkie that was used by the 1 st Appellant to provide him with R20, 000.00 to enable him to move his family. Although Mr. Smit by the time of their arrest already pawned the vehicle, he did not give them any money to enable the Appellants to move. He pointed out photo 9 of Exhibit D as a photo depicting parts of computers that were already being packed away by them in preparation of their move. [142] He testified that they had food every day, which they bought daily. [143] Prior to their arrest R and B lived with them on two occasions for a period of about two to three months. They last lived with them in about March of the year of their arrest. [144] On the evening before their arrest, they had chips and cold meat for supper. They bought food daily because they had no electricity and could not store food in a fridge. 23 [145] The children went to sleep at 20h00, each in their own bed. He and the 2 nd Appellant went to bed by 21h00. Nothing out of the ordinary happened during that night. [146] They overslept the next morning, and only woke up at 07h15, because they could charge their phone and set an alarm because they had no electricity. [147] He testified that the 2 nd Appellant got up first and returned to their room saying the kitchen door is open and she could not see the children. They put on the first clothes that they could find and left the house in search of their children without taking proper care of themselves. [148] They found the gate was open. The gate was difficult to open even for his wife. He does not know how and who opened the gate. They did find fresh broad tracks outside the gate, which he assumed to be tracks of a bakkie. [149] His first thought was that AJ got onto the bus with his sister. [150] He immediately phoned Karel the pre-school Centre that was attended by LA on some days of the week to make enquiry if the children were on the bus and he phoned Mr. Smit to hear if a vehicle is available to help them to search for the children. Then he also phoned the police on 10111 and requested them to be on the lookout for two children of 5- and 8 years who got out of the house. [151] Thereafter he walked the whole route that the bus travelled. At Sinoville Centre he charged his phone for a few minutes. During that time, he was phoned by Mr. Smit who informed him that a social worker phoned him and informed him that they found the children. Just as the call ended a Ms. Heunis phoned him and informed him that the children were found. He was relieved. 24 [152] Thereafter Cst Payne arrived, he immediately entered the car, and they went to their home. [153] Upon arrival at his house, they entered the house through the kitchen door, and he was immediately arrested, and his hands were cuffed behind his back. He was made to sit next to the 2nd Appellant on the sofa. She was crying. [154] He testified that photographers arrived who took photos of all the goods that the police confiscated. By then all the goods were already thrown out of the cupboards. He identified the photos that were handed in by the State as Exhibit D as photos taken by these photographers after their arrest. [155] They were informed that the children were at a crisis Centre. They were only informed that they were arrested for child neglect and the possession of dagga. Comments were made by Cst Payne and Mr. van Dyk that his wife was very skinny. They were also told that they will ensure that they never see their children again. [156] He admitted that the dagga found in his cupboard belonged to him. He admitted to smoking dagga to calm his nerves due to the financial dire straits they were forced in by Mr. Smit. [157] He also admitted that they were in possession of thirteen plastic bags containing residue of CAT. He admitted that both he and the 2 nd Appellant used CAT occasionally when having a braai with school friends. The children would not be present on these occasions but would be visiting the brother of the 2 nd Appellant or his own uncle Danie and aunt Rita Stassen. [158] He testified that he never exposed his children to their use of drugs. He did not even smoke in the presence of his children. [159] They were released on bail about three weeks after their arrest. 25 [160] They only became aware of the other charges of rape and child pornography after a newspaper article appeared in June 2015. They were never informed of these charges by the police. [161] LA was a loveable child. When he returned from work, she would run into his arms and AJ would climb onto his leg. He would then play with them. [162] He testified that the word “parrakoekie” was never used in their house, they used the word “koekeloeks” when referring to the private part of LA. [163] He would hear the 2 nd Appellant using the word when LA was bathed. He was never present while she bathed. He did not even assist in changing her nappies as she was a girl. [164] He denied any incident with a stick and denied that there was a tree with branches low enough to pick a branch. They only had a banana tree on the premises. He pointed out the banana tree in photos 1 and 2 of Exhibit D. [165] He denied that any sexual abuse took place in which he and the 2 nd Appellant participated. [166] He denied that he penetrated LA with a stick and that she bled profusely. He responded that she would then have had to be taken to a hospital. He is unaware that LA bled from her private parts at any stage. [167] He denied that nude photos were taken of LA. He only admitted that the 2 nd Appellant took one photo of LA where she stood in the bath with her back to the camera. She took the photo to show his parents how long LA’s hair was. There was no other intention with the photo than to show his parents the length of LA’s hair. 26 [168] The police confiscated all their sex games that they found in the cupboard, three adult pornography DVD’s and about seven hard drives. The hard drives were given back to them. He looked at the contents of the hard drives. Two hard drives did not work. One hard drive had all their information on, but all their photos and videos were removed before it was handed back to them. These photos and videos were taken while they were on holiday or where the children played. [169] During his evidence, the defense handed in Exhibit P, that had been in possession of the State all the way but not presented to the Court during the State’s case. Exhibit P is a report by a social worker in the employment of the Films and Publication Board, who examined three of the hard drives confiscated in this case on 2 - and 3 December 2014 and found it not to contain child pornography. She compiled a report on 16 February 2015 noting her findings. It needs to be mentioned, that although no conviction followed in respect of the producing of child pornography, it is appalling to notice that the State elected to prosecute the two Appellants of said charge and formally put the charge of contravening section 24 of Act 65 of 1996 to the two Appellants on 11 February 2016 while being well aware of the fact that the evidence at their disposal did not prove that the Appellants committed such a crime. The prosecution of the Appellants on count 7 as well as the fact that the State withheld information contained in Exhibit P from the Court, seems to have been done maliciously. It is further extremely concerning that a newspaper article was posted in June 2015 mentioning the charge of child pornography against the Appellants while it was well known to the police and the prosecution by February 2015 that there was no evidence of the production of child pornography. [170] He denied that any sexual acts occurred between AJ and LA in their presence. [171] He denied that they chased their children away. He denied that there was any argument between them and the children on the night before they disappeared. 27 [172] He denied that he ever took LA to the doctor or that he was present when social services or the police took LA to the doctor. [173] He denied that he ever injected the complainant. [174] He knows A. A, together with his parents would visit them about twice or thrice a year. He has no more contact with the couple as they moved to Mozambique. [175] He denied that R, B or the parents of A participated in sexual misconduct against the children. [176] He denied that he possessed any firearm. [177] He testified that LA had bedlinen on her bed and she was acquainted with bed linen. On the day of their arrest the linen was not yet put back onto the beds as it had been washed the day before and the 2nd Appellant still had to make the beds. [178] He testified that they often bought their children take away meals with toys. [179] He testified that both him and the 2 nd Appellant had lost weight because of their circumstances, but they were not neglected. He could understand if the police said that they were neglected because they were skinny due to the use of CAT. CAT had the effect that you would eat less regularly. They would use CAT on weekends per occasion. [180] He testified that AJ was placed back into their care by the social worker from about February - to May 2015. Thereafter he was placed in a children’s home where they used to visit him until they were prohibited from visiting him by the Court. He denied that they manipulated, intimidated, or threatened AJ at any stage or influenced him not to speak about what happened in their home. He can recall that AJ asked him 28 not to die again. AJ was very happy to be back home. At that stage they were not yet aware that they are charged with crimes such as rape. [181] He denied the evidence of Dr du Toit that he never played with AJ. [182] He testified that there was about R700, his driver’s license and a few cards in his wallet before the wallet was found in possession of AJ. When he received the wallet back, it contained no cash. He was informed by Capt. de Jager that the R200 in the wallet was taken to contribute to the children’s care. [183] He denied any child neglect. He testified that they were not rich, but had sufficient means to live, have the children in school, buy clothes etc. The children were cared for to the best of their ability and with love. [184] During cross examination by the prosecutor, he testified that he had not received a salary for about 6 weeks prior their arrest. He would sell his tools for them to survive. He knew that they would move but could not move before Mr. Smit had given him the R20 000 to enable him to move. He denied the truth of the police evidence that there were no signs that they were busy preparing to move. He referred the prosecutor to the photos that were handed in, which photos depicted packed boxes. [185] He was asked how he could afford to buy drugs if he received no income. He responded that he bought the drugs when he sold scrap metal, but dagga is cheap, and he would not spend a lot of money on buying dagga. They spent about R200 per week on CAT as a bag would cost about R200 per bag. [186] He testified that the police moved items before photographing it, for instance the bong was moved from between the bed and the bedside table to an open spot next to the bathroom door, to be photographed. 29 [187] The night before the children went missing, he locked the main gate with a big Viro lock, the key of which, was attached to the house key, which was kept either in the kitchen door or on the microwave oven. The next morning the kitchen door was open, the gate was open, and the keys were missing. The Viro lock was still by the gate. [188] Usually, the 2 nd Appellant would wake the children in the morning and get them ready for school, but on the morning in question the children were not in their beds. He did not hear the floor planks, the door being opened, the gate being opened or the dog barking. [189] He does not know how the children opened the gate, but he believes that if AJ tried very hard, he would have been able to open the gate. He agreed that in those circumstances AJ would have intentionally wanted to open the gate to go out. But he also believes that it is possible that Mr. Smit was there the morning, and that AJ might have given him the key to open the gate. [190] He testified that the children used to pack stuff in suitcases and pretend to have a picnic outside. [191] He identified the “mondfluitjie” on photos 27 and 28 as the 2 nd Appellant’s deceased uncle’s “mondfluitjie”. He cannot remember where they used to keep it. He testified that he was not even aware that the children had taken the “mondfluitjie” as well. [192] He admitted a statement by the prosecutor that to take the wallet and the “mondfluitjie” was a strange combination. [193] He denied a statement by the prosecutor that he had chased the children away and he denied that AJ did not know their street address. He denied that the children could have slept in the bushes the previous night. 30 [194] He was asked if it is his version that the children ran away from a loving home without any reason. He responded that he doubts whether the children ran away and stated that children can say anything if they are caught being naughty. He believes that the children were playing in the park and took off their shoes to play. [195] He testified that he could understand that the children were scared when they were discovered by unknown people approaching them. [196] He testified that they had more friends than B and R and the parents of A. He does not know why LA implicated these friends as co-perpetrators. [197] He denied the evidence of LA that he would take photos of her dancing naked, or photos of her “parrakoekie” and buttocks. He stated that if that was true, it would have been discovered on the hard drives. He denied putting photos on CD’s and giving it to friends. [198] He stated that the vocabulary that was used by LA during her testimony is not vocabulary that she knew of. They never used words like “parrakoekie”. They never did anything sexually in front of the children. He does not know whose words they were, but they were not words used in their home. He denied that LA could have seen the contents of their adult pornography material. [199] It was put to the 1 st Appellant hat the day after their arrest, LA made the first statement in which she stated that photos were taken of her while she was naked. He responded that LA could not yet speak full sentences at that stage, and she did not have the vocabulary or knew the word “parrakoekie”. He testified that it is possible that somebody told her to make the allegations. He could not identify who would have done that, but somebody did it. It was put to the 1 st Appellant that it is high ly improbable that a child of that young age could maintain a lie for such a long period (since the day after the arrest on 20 August 2015 until she gave evidence on 1 February 2016). He responded that he does not know how long a person can maintain a lie, he does not 31 know what she was told and what her circumstances are, whether maybe she has many toys, but he does not know where she got the words from. It was later put to him that in this very first statement LA stated that she does not want to live with her parents anymore as they scold them and chased them away. He denied it and responded that it was not her words. [200] Their mode of discipline with AJ was to take away the computer or fold a newspaper and give him two smacks or sit down and talk to him. It was not yet necessary to discipline LA. He never gave the children a hiding. [201] He testified that he had a good relationship with AJ. He denied the truth of Dr du Toit’s evidence that he did not have a good relationship with AJ and that AJ could not provide her with a single positive action that they did together. He denied her opinion that AJ was a deeply traumatized child. He responded that if AJ believed that he was dead, who knows what LA was told about them. If there were problems with LA, she surely would have reported the problems at the creche already. [202] He testified that the children had no reason to run away from home. It was put to him that it is not the truth, otherwise the children would not have run away. He responded that he does not believe that the children ran away, he believes that the children wanted to go and play in the park. He denied the statement that the children were chased away by the Appellants on the night before they were discovered. He repeated that he did not know how they succeeded in opening the gate. [203] He agreed that his thought that the children wanted to go and buy him a “braaiertjie” was just his opinion and speculative. He had that opinion as AJ once mentioned that he wanted to buy him the “braaiertjie” at a shop that they drove past. The shop was about 5 km from their home. [204] B and R were friends of the Appellants and moved out of their home approximately March 2014. They visited once or twice after they moved out, but since 32 their arrest, they have not had contact with them again. He admitted that they had other friends visiting them as well and that his children loved both B and R. He could not explain why LA in these circumstances made the allegations against B and R but was adamant that her allegations were false. [205] He denied that he took photos of the complainant while she was naked, lying on the bed and dancing. He testified that the photos that he took of the children as they grew up, were taken with the cellphone and transferred to the computer. He stated that if LA was telling the truth, the naked photos of LA would have been discovered on the computer. He denied transferring these photos onto CD’s and giving it to friends. He testified that LA knew of CD’s as they watched movies and played games with CD’s. [206] He testified that he believed that LA would be very glad to see him and jump into his arms. They had a very good relationship. He does not believe what is said. It was put to him that the children gave the information to the State. He responded that it is not true information. He stated that LA is lying. The words used by her are not her words, she used words that she did not know in their home. He said that he did not know whose words they were, but someone had to teach her those things. [207] He testified that the children were first placed in safe care together, and thereafter split due to an incident. At that stage LA was placed in the care of Ms. Smit and AJ was placed with his nephew. [208] The children were never exposed to sexual deeds or to the pornographic material that the Appellants possessed. [209] It was put to him that LA made her first statement on the day after their arrest in which she already mentioned the photos that the Appellants took of her while she was naked. He responded that it is not the truth that he took naked photos of her. He continued that at that stage LA just started to make sentences and the words used were unknown to her. They never used the word “parrakoekie”. He testified that LA at some 33 stage alleged that Mr. Smit molested her and thereafter again said that he (the 1 st Appellant) molested her. He testified that she was definitely told by someone what to say. He repeatedly stated that he does not know who told her what to say or why she says what she says but denied that her allegations are true. [210] He stated that he firmly believes that the ordeal could have been resolved in an amicable manner. The police believed that there was child pornography while they took all the hard drives, and both the Appellants gave their continuous full cooperation all the time. [211] It was put to him that a child of such a young age could not have persisted with such a lie for such a long time, as LA only testified approximately eighteen months after she made her statement. He responded that he has no knowledge of how long a person can continue with a lie, he does not know what her circumstances are, maybe it is very nice, and she has a lot of toys. [212] He admitted that the only witness in the trial that knew him, was LA. [213] He testified that Mr. Smit knew the late Capt. de Jager and it is possible that the two of them built this case against him and his wife. It was put to him that this version is highly improbable. He denied the statement and responded that there is a big likelihood that it happened that way. [214] It was put to him that LA persisted with her version, not only in Court but also in her reporting thereof to Ms. Smit and to the person who took her statement. The defense, rightly so in my opinion, objected to the statement by the prosecutor and argued that the statement is not correct due to the contradictions in the evidence of LA and that of Ms. Smith. Without giving any reasons for his ruling on the objection, the learned Regional Magistrate merely instructed the witness to answer the statement, and as such effectively overruled the objection by the defense. 34 [215] He denied the truth of LA’s version that she had to suck his penis and that it tasted like bad jelly and that the 2 nd Appellant showed LA how to do it. He denied that he pushed a stick into her “piepieplek” and responded that if that happened, the child would have had to go to hospital. [216] He denied that AJ committed deeds with the complainant. [217] He responded that it is sick to believe that he instructed LA to suck the private part of the 2nd Appellant. [218] He responded that AJ should be asked if it is true that LA had to suck him. [219] He testified that LA told the truth when she said that a friend by the name of A also visited them. [220] The conclusion of Dr Lukhosi, who examined LA on the day that the children were removed from their care (that the anal injury does not produce conclusive evidence of penetration, however, is suspicious of previous anal penetration) was put to the 1st Appellant, who denied the conclusion. [221] It was put to him that none of the state witnesses or any party to these proceedings had any reason to fabricate such an extensive false version against them. He responded that he does not agree as people form perceptions about others, if they observe you, you do not look like the standard of what they would like to see, and then they form their own opinion about what you do at home. [222] He denied a statement that himself, with or without the 2 nd Appellant committed these deeds and that they did not care for the children as they should. [223] During re-examination of the 1st Appellant, he testified that the police confiscated his cellphone and could have obtained a record of the contents. 35 [224] Certain aspects of LA’s first statement were put to him. For instance, LA stated that they lived in a small house. The witness denied it and confirmed that the submitted photos reflect the house. LA also stated that one day while she and her brother played with a ball, her mother and father called them and told them to pack their clothes and go away and never return. He denied it. She stated that her father slammed close the door and the gate, and they slept under a tree. He denied the statement. [225] He testified during questions by the learned Regional Magistrate that they had no fixed income in the last days, but he would sell items or repair people’s phones or service people’s computers for a few rands. He testified that they did not have an above average lifestyle, but at some stages it went well and sometimes it did not go as well financially. [226] The second witness in the defense’s case was W/O Boshoff. He was stationed at the Serious Electronic Crime Investigations Unit of the SAPS, which unit deals with all child pornography matters in Gauteng. On 13 July 2015 he was tasked to obtain a statement from a child, whose name and surname he could not remember. After he refreshed his memory from his own statement that he made, he confirmed that the child was the 9-years old AJ. It is clear from his evidence that he can recall little if any detail of the day that he took the statement. He gave his opinion, based on his years of experience working in that field, that that child, AJ, would be able to testify in a trial. [227] The 2 nd Appellant testified under oath that she is married to the 1 st Appellant. She listened to the evidence of the 1 st Appellant and agrees with his evidence. She testified that she occasionally also used dagga with the 1 st Appellant since the passing of her mother. The effect of the dagga was to calm her down. She also used CAT. She admitted that packets containing residue of CAT were found in their house. She was too scared to throw the empty packets away in the dustbin as they could be dis covered by the children or someone else. She hid the empty packets on the top of her wardrobe under her clothes. They used CAT for a period of just over a year and never used it in 36 the presence of the children. They would use CAT when the children went away for a weekend to visit her brother or the aunt of her husband. Sometimes AJ would also sleep over at his friend from school. [228] She testified that R and B stayed with them for a period of about two to three months prior to their arrest. She does not know their current locations. [229] She testified that it is extremely sad to hear what LA testified. She does not know where the child got the information from because they love their children. She testified that the evidence of LA is not true. She denied that they molested LA or that the 1st Appellant raped LA. [230] The night before their arrest, LA was in her bed. That night she saw LA and AJ, sleeping in their beds when she went to the bathroom. [231] After AJ was removed from their care, he was placed with the nephew of the 1 st Appellant, and his wife. When the wife had to go for a heart operation, AJ was placed back in their care in February 2015. AJ was very happy and continuously enquired about his sister. They did not discuss the facts of the case. [232] She is of the view that the children were not neglected. They were walking through the park and possibly playing in the park, so their feet would be dirty. The children were not neglected, they had toys, clothes, love, and attention. She denied that they did not have food in the house. There was always food, fruit, and sweets. The children had what they wanted. [233] Although the house might not have been tidy when the police arrived, it was not dirty. She did not yet have the time to wash the dishes or to make the beds as they went searching for their children. The clothes were lying around in the house because the police threw everything out of the cupboards and took photos of the inside of the house after they had thrown out the contents of the cupboards. 37 [234] She was home all day and took care of the children. It is not true that the 1 st Appellant did not play with AJ. AJ received a merit award for mathematics at school while he lived with the nephew of the 1st Appellant. [235] She denied that they took naked or pornographic pictures of the children. She once took a photo of her daughter from her back in the bath with her wet hair to show how long her hair was. She was sitting down in the bath and not even her buttocks were visible. [236] During cross examination by the prosecutor, she testified that on the evening before their arrest she bathed the children, spent time together and then she put them to bed. She and the 1st Appellant went to bed about an hour to an hour and a half later. They had no electricity and used candles to see in the dark. [237] As they had no electricity, they could not charge their phone and could not set an alarm. She woke up at about 07h00, as a bus passed and stood up to wake AJ up for school. She then saw that the children were not in their beds. She woke up the 1 st Appellant and informed him that the children were missing. [238] On her way out to look for the children, she saw that the kitchen door was open, and the gate was open. The gate was made of steel and was heavy and opened and closed with difficulty. It is locked with a chain and a lock. [239] She went back into the house to put clothes on. The 1st Appellant then called the police, the creche and the school. [240] She did not have a proper look in the children’s rooms before leaving the premises to search for the children because she got a big fright. 38 [241] As she walked in search of the children she enquired at the shops along the route. No one saw the children. [242] She does not know how the children left the premises. [243] The keys of the lock of the gate were usually kept on the microwave oven. The key was not on top of the microwave oven that morning. [244] She knows that the wallet of the 1 st Appellant was also missing, which was also always kept on top of the microwave oven. [245] She did not use dagga or CAT the night before the children went missing. They last used drugs the weekend before the children left the home. [246] The park referred to in the evidence is about seven to eight street blocks from their home. The children often walked to the park from their home. They knew the road to the park. She denied the evidence that the children could not tell where their house was. [247] She denied that the children were chased away and that they slept in the bushes the previous night. [248] By the time of their arrest, they were on their way to move from the property but could only do so once Mr. Smit gave them money. Mr. Smit promised on a weekly basis that the money would come in the next week. Here and there she already packed a box of goods that were not used often. [249] She identified the red vanity case on photos 20 to 22 of Exhibit C and the clothes inside the vanity case. She does not know when the children packed the clothes. She denied that the children planned to go away as they packed the vanity 39 case. She testified that the children had no reason to run away, and they always packed a case with extra clothes if they went away, even if it is only for an hour. [250] She agreed that the children could have been hungry when they were found as they did not yet have breakfast. She testified that they were used to eating toast. [251] She testified that the evidence of LA and of other witnesses (that the children were chased away) are all lies. [252] She believes that LA was told that she does not want to live with her parents again. She believes that LA was foretold by Mrs. Smith because Mrs. Smith stated in a newspaper article that she does not want LA to leave her. She also motivated that the words used by LA, and the things that LA spoke of were unknown to her when she stayed with them. She could not explain how LA then said what she said in her statement that she made in August 2014 before she was placed in the care of Mrs. Smit. [253] She denied that a window broke in their house or that the children were chased away due to the broken window. [254] She denied the truth of the allegations made by LA against her and the 1 st Appellant. [255] She denied the evidence of Mrs. Smit that LA had no idea of bed linen. She admitted that the children did not have a fitted sheet and a flat sheet on their beds, but they did have linen on their beds. [256] There were no problems between B, R and LA and she could explain why LA also implicated B and R in the commission of sexual deeds. 40 [257] The only reason why she believes that the reason for the children to have left the house, was possibly because AJ wanted to go and buy the “braaiertjie” for the 1 st Appellant, is because the wallet of the 1st Appellant was missing. [258] She has never since her arrest seen LA again. [259] She testified that the only comment that she could give in respect of the possibility that Mr. Smit was involved in laying the charges is that she heard that Mr. Smit arranged for children of other people to be removed, and she found fresh tracks outside the gate on the day the children went missing. Further she heard that he was in the vicinity when the 1st Appellant called him for help, and he could have helped them to look for the children. [260] She testified that the children would not have been able to open the gate alone. [261] It was put to her that none of the witnesses for the state could have benefited from fabricating false charges or to foretell LA. She responded that she does not know how to answer as none of the allegations made by LA are true. [262] It was put to the witness that the only way in which LA could persist with her version, was if it did happen as LA testified. She again denied that any of the incidents occurred. [263] During questions by the learned Regional Magistrate, she testified that the name she used for the complainant’s private part was “koekeloeks”. [264] She stated that they thought of every possible scenario that could have caused the children to have left the home. [265] She stated that she does not know for sure who foretold LA, but she was foretold.