WHAT CONSTITUTES INDECENT ASSAULT? S v Kock 2003 2 SACR 5 (SCA)

Abstract

The relevant facts in this case are that K, the appellant, a 27-year-old music teacher was arrested on 18 January 2002 and, pending further investigation, was placed in detention. He had been suspected of having committed acts of indecent assault on boys under the age of 16 years. The magistrate refused an application for his release on bail. After unsuccessfuly appealing to the Johannesburg High Court, K, with leave of the court a quo, successfully appealed to the Supreme Court of Appeal (SCA).

Indecent assault on a person under the age of 16 years is included in Schedule 5. The State failed to present evidence of the arrest of K on specific charges and no formal charge-sheet which contained relevant detailed information on the charges had been drawn up. Furthermore, the State refused K's legal representative access to the docket. The reason provided for this refusal being that it would prejudice the continuing investigation. In his judgment on behalf of the court, Heher AJA observed that the State should have presented evidence in justification of its reliance on section 60(11)(b). This could have been done by the production of a certificate in terms of section 60(11A)(c). Notwithstanding the fact that Heher AJA did not rule out the possibility that the High Court in Prokureur-Generaal, Vrystaat v Ramokhosi (1997 1 SACR 127 (O) 156) might have been correct in finding that section 60(11) is only applicable if the detainee is accused of “'n definitiewe, omlynde en verstaanbare misdaad”, he assumed that “the State had done enough to bring the matter within the terms of the section”.
According to the (second- or third-hand) information placed before the court it would appear that the acts complained of by the state witness boiled down to “grooming” which comprises “acts designed to prepare participants for a more adventurous stage of sexual exploration”. This includes the showing of pornographic videos, indulging in suggestive games with boys, non-erotic massaging of the bodies of the boys with oil or cream and sharing a bed with them at night (10). In her judgment the magistrate proceeded from the following definition of indecent assault:
“Indecent assault is not only an offence where the accused has to touch the private parts of the children or otherwise but also any immoral or indecent act which is in its nature or circumstances indecent or immoral” (quotation and emphasis by Heher AJA (10)).