Sex offence: not guilty

2012-12-15 00:00

AN Empangeni woman hopes she will soon be reunited with the small daughter she last saw in March 2010, after two high court judges set aside her conviction for exposing her child’s genitals to the biological father.

Even the state agreed there was a miscarriage of justice.

It did not oppose the woman’s appeal against her conviction in terms of the Sexual Offences and Related Matters Act.

State advocate Adelaide Watt submitted in written argument that it was a disgrace that the legal system should be abused by parents involved in divorce proceedings or used as a “revenge tactic”.

The woman has had no contact with her child since March 21, 2010, when the girl was removed by welfare services and placed in care because of the case against her mother.

The girl’s parents had an acrimonious relationship.

The trial court accepted that when the mother exposed the girl’s genitals, she did so in the driveway of her own home while “traumatised”.

The mother was concerned after the four-year-old allegedly reported to her that “my daddy hurt my cookie”.

The mother had previously accused her ex-husband of sexually molesting their daughter.

Empangeni magistrate B. Kheswa convicted the mother of contravening the Sexual Offences Act.

However, on appeal, Pietermaritzburg high court Judge Anton van Zyl and Acting Judge Sharon Marks said it was not established that the mother had any intention to commit a crime with a sexual connotation.

They set aside her conviction and sentence of two years’ correctional supervision.

The mother’s attorney, Connie Marais of Richards Bay, said yesterday the woman felt she had been through too much and was still too overwhelmed by the appeal court’s ruling to talk to the media.

“We have set up an appointment with a social worker next week in the hope that she will be able to resume contact with the child in the near future.”

As to whether the woman was considering the possibility of suing for malicious prosecution, he said their first priority was to restore the mother’s contact with her child.

In his submission, advocate Jan du Plessis, who represented the mother on appeal, said Parliament could never have intended to make it an offence “merely for the genital organs or breasts of a female person to be visible to another person”.

If that were the case, then even the organisers and participants in the annual Reed Dance in KZN or Domba Dance in Limpopo would be guilty of an offence, he said.

This submission was even more pertinent having regard to the fact that in this case the “exposure” was to the child’s biological father.

The other person present was the child’s grandmother.

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