THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NUMBER 75/98
In the matter between:
M V H VIVEIROS
Appellant
and
THE STATE
Respondent
CORAM:
HEFER,  ZULMAN JJA
et MTHIYANE AJA
DATE OF HEARING:
21 FEBRUARY 2000
DATE OF JUDGMENT:
9 MARCH 2000
JUDGMENT
ZULMAN JA:

[1]   The appellant was formerly the principal of the G.C. Williams House (“the
home”), a facility  in Bridgetown on the Cape Flats which cares for homeless,
abandoned or abused children. He was charged in the Regional Magistrate’s Court,
Wynberg, with six counts of indecent assault and one of sodomy.  All the
complainants were minors at the time of the alleged offences.  Some were very
young children whilst others were more or less of the age of puberty.  They were
all being cared for at the home. The appellant was acquitted on two of the counts
of indecent assault but found guilty on  the remaining counts. On appeal to the
Cape High Court the conviction on the sodomy charge was set aside but the
convictions on the four indecent assault charges were confirmed. He now appeals
against these convictions.
[2]    In view of the nature of the charges and the age of the complainants it is well
to remind oneself at the outset that, whilst there is  no statutory requirement that a
child’s evidence must be corroborated, it has long been accepted that the evidence
of young children should be treated with caution (R v Manda 1951(3) SA 158 (A)
at 163 C; Woji v Santam Insurance Co Limited 1981(1) SA 1020 (A) at 1028 B-
D); and that the evidence in a particular case involving sexual misconduct may call
for a cautionary approach  ( S v J  1998(2) SA 984 (SCA) at 1009B). For reasons
which will presently emerge the present case is plainly one which calls for caution.
[3] Before I deal with each count in turn I wish to make the following general

observations:
(i)
The magistrate failed to properly appreciate the significance of
the onus which rested upon the State.   In his reasons he stated :
“The accused’s failure to convince the court is a further
guarantee of the veracity of the evidence tendered by the State.”
It is trite that there is no obligation upon an accused person, where the
State bears the onus, “to convince the court”.  If his version is
reasonably possibly true he is entitled to his acquittal even though his
explanation is improbable.  A court is not entitled to convict unless it
is satisfied not only that the explanation is improbable but that beyond
any reasonable doubt it is false.  It is permissible to look at the
probabilities of the case to determine whether the accused’s version
is reasonably possibly true but whether one subjectively believes him
is not the test.   As pointed out in many judgments of this Court and
other courts the test is whether there is a reasonable possibility that the
accused’s  evidence may be true.
(ii)
I do not find it improbable (as the magistrate did) that the
complainants would conspire to fabricate charges against the
appellant.  The magistrate is incorrect when he states in his judgment
that “no evidence was forthcoming to this effect”.  On the contrary,
the appellant has suggested reasonable grounds for suspecting that at

least some of the witnesses for the State may have had a grudge
against him and the evidence of Andrews (a child care worker of the
Home) indicates that Andrews may well have had a motive to wish to
implicate him falsely.  I find nothing “inherently improbable” in the
evidence of the appellant to the effect that Andrews and  Miss Terry
(a social worker employed at the Home) would fabricate evidence
against him.  The appellant has suggested reasons for this which are
not so far fetched as to be summarily rejected.
(iii)
It is of little value to judge an accused on his demeanour in the
witness box and to convict on this ground.  In this regard the
magistrate states that “the accused was ill at ease when testifying”.
Such conduct is not unusual nor surprising amongst accused persons
or indeed witnesses generally who may be afraid or even overwhelmed
at the experience of giving evidence in a court, possibly for the first
time.  (See  the remarks of Diemont JA in S v Kelly 1980(3) SA
301(A) at 308 B-G and H C Nicholas “Credibility of Witnesses” 32
1985 SALJ at 36-37 which are particularly apposite in a case like the
present where the appellant became emotional even while some of the
state witnesses were testifying.)
(iv)
I find the magistrate’s findings concerning the witnesses

Osmond and Beukes somewhat inconsistent.  On the one hand he
uses their evidence to discredit the appellant and on the other hand
states that their evidence “must be regarded as of no value”.  Plainly
the magistrate cannot have it both ways.  Either their evidence is of
value or it is not.
(v)
It is important to bear in mind that there was a long delay before
the charges were tried in court. Most of the incidents occurred 3 years
before the trial. Whilst this may afford some excuse for discrepancies
it nevertheless requires one to be cautious when evaluating the
evidence.
[4] The first count concerns the complainant Christopher Engelbrecht who   was
six years old at the time of the alleged offence and 9 years of age at the time that he
gave evidence.  His evidence is to the effect that the appellant  masturbated him at
the latter’s house in Strandfontein. He demonstrated this to the witness Andrews
and again in court. But Andrews described the action demonstrated to him as a
“twisting movement” which is not how it was demonstrated in court. I cannot
accept the magistrate’s statement that the difference is “purely a semantic
difference”. It is important to note that the complainant acknowledges that, after he
had run away from and had eventually been returned to the home, the appellant had
given him a hiding and that he was cross with the appellant.  Moreover, the incident

allegedly occurred shortly after  Terry had joined the staff of the home  as a social
worker.  It is common cause that the appellant asked Terry to investigate
Engelbrecht’s allegations and that she reported to the appellant and to a full staff
meeting that she could find no basis for them. The complainant was referred to a
psychologist for further investigation.   The psychologist was not called to give
evidence as to what he found.  It  is most extraordinary that suddenly, almost a year
later, the same allegations came to the surface. Terry was not able to explain
satisfactorily why she then believed the complainant having previously not believed
him. Her attempted explanation seems to be highly suspect putting it at its lowest.
Weighed against the appellant’s denial that anything improper occurred and the
improbability that the appellant would (as Engelbrecht claimed) have switched on
the light in the dining room while other boys were in the small house and while
allegedly openly masturbating the complainant, there is  considerable doubt as to
the veracity of the complainant’s account.
[5]     The magistrate relies heavily upon the evidence of Andrews as corroborating
that of the complainant.  Andrews was found to be  untruthful regarding certain
evidence that he gave in cross-examination concerning his qualifications.  His
untruthfulness in this regard cannot simply be brushed aside upon the basis that it
is not directly relevant to the matters in issue.   It is plain that Andrews may well
have had grounds for bias against the appellant who had reported him for being late,

absent and an inefficient child care worker. All this led to Andrews losing his
bonus. Admittedly,  the fact that he lied about his qualifications does not
necessarily bring about that the rest of his evidence is suspect; but there is an
obvious need for caution and there is no indication in the magistrate’s reasons that
he realized this.
[6]   The complainant in count 3 was Carlow Nel.   The appellant is alleged to have
indecently assaulted him by kissing him on one occasion at the appellant’s house
in Strandfontein “in a ladylike fashion”.  Nel was 17 years of age  at  the time of the
alleged offence and 19 years when he gave evidence.  He testified that the kiss was
“over affectionate”.  The appellant’s evidence was that he kissed Nel in a fatherly
and not indecent way. According to Nel he first made a report about the kiss to one
Wallace.  Wallace was not called to give evidence.  As there is no indication that
he was not available one  is entitled to draw an adverse inference against the State.
Moreover, there are contradictions in  Nel’s evidence as to whether or not  he went
to the appellant’s residence after the alleged incident.  I find his statement that he
could not remember whether or not he had done so to be evasive.  This is certainly
not another “semantic discrepancy” as the magistrate found. The appellant
contends in his heads of argument that the  necessary intention to assault was not
proved in relation to this count nor was it been proved that the assault was of an
indecent nature.    There may be  some substance in this contention and also in the

contention that even if one accepts Nel’s evidence the assault was not of any
significance and that the maxim de minimis non curat lex applies.  In the light of
my view of the other unsatisfactory aspects of the appellant’s conviction on this
count it is not necessary to come to a firm decision.
[7]   The complainant in count 4 was Vincent Hendricks who was 16 years old at
the time of the alleged offence.   He alleges that one night the appellant crept into
the room which he was sharing with one Beukes where he pushed his hand into the
complainant’s trousers, played with his penis and tried to kiss him on his lips and
put his tongue into his mouth. He was unable to say when the incident occurred
save to state that it took place on a Saturday or Sunday night in the appellant’s
cottage at the home. The complainant alleges that he told  Patrick Legg (the
complainant in count 6) about the incident.  Initially Legg did not corroborate the
complainant in this regard and when it was put to him what Hendricks had said, he
changed his evidence and said that he knew that Hendricks had said something to
him but could not recall if he had given him the full story.    The evidence reveals
that the appellant and the complainant had clashed on a number of occasions.  The
first related to an incident when  the complainant had seriously damaged a vehicle
belonging to the home which he had taken without consent. The appellant’ evidence
to the effect that the complainant had been in a police cell because of this for nearly
a week and had been  punished was not challenged. There were other incidents

relating to the disappearance of money from the home’s safe which involved the
complainant. There is accordingly at least a reasonable basis for believing that the
complainant must have harboured some ill feelings towards the appellant.   One
cannot safely rely upon his evidence and conclude that he is telling the truth. The
appellant denies that he had ever done anything improper to Hendricks.  What he
did on occasion was to check whether the complainant had wet his bed (which, it
is common cause,  the complainant often did). I cannot accept the magistrate’s
finding that it is inherently improbable that an adult would place his hands under the
bedding to determine whether the bed was wet without first waking its occupant
and that, for this reason, the appellant’s evidence fell to be rejected.
[8]   The complainant in count 6 was, as previously stated,  Patrick Legg who was
18 years old at the time of the alleged offence.  He testified about two incidents.
The first was when the appellant allegedly touched his private parts through his
trousers while he was in bed.   The other  occurred about two weeks later when the
appellant allegedly  again put his hands into the complainant’s trousers  and
touched his private parts.  The appellant denies that he behaved in the manner
stated.   There is no corroboration of the complainant’s evidence. His evidence is
unsatisfactory and unreliable in several respects. There is considerable substance
in the argument advanced in  the appellant’s heads of argument to the effect that the
complainant has a problem in separating reality from unreality.  Indeed the

complainant stated in cross-examination that the first incident might well have been
a dream on his part.  The appellant’s evidence that the complainant was referred to
a hospital for psychiatric care was not denied by the complainant nor challenged
by the State.  Any abuse of the complainant would undoubtedly have come out in
the psychiatric evaluation.  There is no evidence that it did. It  is also unlikely that
the appellant would have referred the complainant for such evaluation if he had been
guilty of abusing him.
[9]  In all of the circumstances  I believe that the magistrate was incorrect in
convicting the appellant on the four counts in question.
In the result the appeal is allowed and  the convictions and sentences
in question are set aside.
________________________
R H ZULMAN JA
HEFER JA
)
MTHIYANE AJA
) CONCUR