Alberto Abram De Sousa v The State

The appellant was convicted in the regional court in Welkom on two counts of indecent assault and one count of rape. The first count related to incidents in 2005/2006 at the complainant's grandmother's home where the appellant allegedly summoned the complainant to kiss his lower naked stomach and exposed his penis to her. The second count related to incidents between September and December 2007 at the appellant's home where he allegedly inserted his penis into the complainant's mouth and ejaculated. The complainant was six years old at the time of the alleged offences and twelve years old when she testified. The appellant was the uncle by marriage of the complainant. The appellant denied the charges, had no previous convictions, and stated he had no idea why the complainant would implicate him. The complainant disclosed the incidents to her mother after receiving a gift of jewellery from the appellant's wife (her aunt), which led her to believe her aunt knew of the incidents and was trying to buy her silence. The regional court convicted the appellant on all counts and sentenced him to 5 years on the first count, 10 years on the second count, and 15 years for rape, to run concurrently (effective 15 years). The high court upheld the appeal against the rape conviction but confirmed the convictions on both indecent assault counts, reducing the sentence on the second count to 7 years.

• Whether the evidence of the complainant, a single witness who was 12 years old at trial and 6 years old at the time of the alleged offences, was sufficient to establish guilt beyond reasonable doubt
• Whether the evidence of a forensic social worker could be admitted and relied upon to assist the court in determining whether sexual abuse had occurred
• Whether the first count of indecent assault (kissing the lower naked stomach) constituted indecent assault
• Whether the second count of indecent assault was proven beyond reasonable doubt despite discrepancies in the complainant's evidence

1. The appeal was upheld in respect of the first count of indecent assault; 2. The conviction and sentence on the first count were set aside; 3. The appeal was dismissed in respect of the second count of indecent assault (sentence of 7 years' imprisonment confirmed).

The binding legal principles established are: (1) Evidence from a properly qualified and experienced forensic social worker who conducts extensive, scientifically respectable evaluations using a multi-dimensional framework can properly assist the court in determining whether sexual abuse of a child occurred, going beyond inadmissible hearsay to provide expert evaluation evidence; (2) 'Sensory information' provided by a child complainant regarding details such as the taste and texture of ejaculate can constitute credible evidence that such an event occurred, particularly where alternative explanations (such as learning from pornography) are implausible; (3) The totality of evidence in sexual offences cases must be evaluated, including the credibility of witnesses, expert evaluations, and the detail and nature of the complainant's evidence, even where there are some discrepancies in the evidence; (4) Not all distasteful conduct involving exposure constitutes indecent assault - the elements of the offence must be proven beyond reasonable doubt.

The court noted somewhat anomalously that the high court, when hearing the petition, granted leave to appeal to this court, when what was properly before it was an appeal against the dismissal of the petition. The Supreme Court of Appeal then had to clarify the procedural position by first upholding the appeal against dismissal of the petition and granting leave to appeal against convictions and sentences, directing that appeal to the high court. The court also noted that even though the appellant enjoyed the benefit of the doubt in respect of count one, it had no practical effect on sentence as the sentence on count one had been ordered to run concurrently with the sentence on count two.

This case is significant in South African law for establishing the admissibility and proper use of expert evidence from forensic social workers in cases of child sexual abuse. It demonstrates how such expert evidence, going beyond mere hearsay reporting to include scientifically respectable evaluations and multi-dimensional frameworks, can properly assist the court in assessing whether sexual abuse occurred. The case also clarifies the boundaries of what constitutes indecent assault, particularly in cases involving child complainants who are single witnesses. It illustrates the court's careful approach to evaluating evidence in sexual offences cases involving children, balancing the need to protect children while ensuring fair trial rights.