COUNT 6 & 7 - SEXUAL ASSAULT

Caroline Henrico (‘Henrico’), the erstwhile pupil of the accused and the complainant on counts 6 and 7 testified, inter alia, as follows:

[a] She stated that she was born on 19 January 1993 and currently 18 years old. She was a modeling pupil of the accused, whom she met during 2008 at a modeling competition called Model Cup. The accused was becoming a member of Model Cup, which was owned by one Dominique Rensley.

[b] She recalled an occasion when she was rehearsing late at night with other models, for a fashion show that was going to be held the following day at a competition called YOTM. Her father was not allowed into the venue as the girls were not appropriately dressed and to protect them. (1)

1. Transcript page 324 Para 1 - I can remember one competitions name YOTM (Year of the Model), where the top 20 had a fashion show afterwards. We were busy exercising for the show.

NOTES: ACCUSED

a. I was not involved in YOTM.

b. Dominque Rensley use to do photography for the competition.

c. I only heard during the trial that she was in this fashion show.

[c] She was dressed in a panty and corset and seated. The accused joined her and sat next to her. Shortly thereafter he touched her inner leg and upper thigh, whilst telling her that she is a clever girl and that she would not tell anyone, especially her parents. She immediately stood up and walked to another part of the venue. (2) 1

1 This is hearsay and her opinion. We could not find any corroboration from a witness to verify this. Furthermore, according to the records on the Internet, the accused was not part of that event once before. PAGE 88

2. Transcript Page 328 Para 1 & 2 - MS

PERSAD: Yes, Caroline, and then what happened? --- At this rehearsal my father was not allowed into the venue because the girls were very exposed. Okay, stop there. COURT: Sorry, what did you say? What did you say? --- My dad was not allowed into the venue where we were rehearsing because we did not have our full wardrobe yet. You say: “Your dad was not allowed into the venue, because you did not have a full wardrobe.” --- Yes, the clothes that we were supposed to do the fashion show in was not ready, all of it. So to protect the girls. (a) Okay. To protect the girls what had happened? --- However, Dawie was inside. Sorry, it was to protect the girls. --- Just to… I felt it was to protect us, that there was no one and you can be comfortable. Because I was wearing like a panty and a corset. A corset. 2 MS PERSAD: Yes, Caroline, and then? --- Then Dawie came to sit next to me. Then, so that nobody could see, he would touch my inner leg and my upper thigh. He always told me I am a clever girl and I will not tell anyone.

NOTES: ACCUSED

• She testify and say her dad was not allowed in the venue. Because the were not fully dressed

• In the same breath I was there, a person who was not in any way part of the competition.

A complete stranger is allowed to be with the models there they get dressed??

• I was not at that event and I did not see, nor sit next to Caroline at YOTM. There is no evidence that prove I was there. 3

2 We found nothing of this to be true. Dominique was the only one who was part of the event, and the accused was not involved at that event. It is an external event not related to the accused. According to the records, there is no evidence showing the accused being at that event or allowed to be at that event. 3 We can now verify that this is true.

[d] She stated that she had regularly communicated with the accused on mixit and facebook. She recalled an occasion when the accused sent her messages that made her feel very uneasy. The conversation was initially friendly wherein the accused stated to her that it was better that they remain as friends, and during such exchange the accused wrote to her on the chat that he would give her an orgasm with just his tongue and hands. (3)

3. Transcript Page 328 Para 2 - We also had communication on Mixit and Facebook. One night he sent me some messages that made me very uneasy. I do have the messages because I saved them. What did the messages say?

[e] She made a copy of the facebook chat so as to prevent the accused from deleting it, which was handed in as Exhibits J1 – J3. She referred the court to the following excerpts on Exhibit J3: At 01.12am the accused wrote as follows: “ok waar is soen, vat en hoe is daar net waar ek jou kan wys. Ek sal jou n org laat kry sonder om… net met my tong en hande!” At 01.14am the accused wrote as follows: “is dit rof ? rof is as ek jou vat en net goed….. sonder enige stories.” *(4) 4

4. Transcript Page 330 Para 2 & 3 - COURT: So, Ms Henrico, you basically tell the Court about the messages and you say the messages are here with you on your phone. You will have no objection to letting the state look at your phone in terms of the messages?

4 We find this far fetched. There are a lot of problems with the witness’s explanation of what she copied into a text file and not screen printing the messages. We did this exercise, and we could not get Facebook messages to copy as she did. According to her testimony, the messages she copied were also objected to by the Defense Advocate due to their poor quality. The Court instructed her to bring the original file to Court, and that did not happen. The messages were not accepted and are currently hearsay evidence and cannot be verified that they were not tampered with or edited. The accused carried no knowledge of chatting to the witness on Facebook. --- It is not on my phone. I saved it at that time. I felt uncomfortable with the conversation so I saved it. Okay, where did you save it to? --- A few months later Dawie blocked me from Facebook, so it was not available anymore. But I saved it beforehand. I saved it on Microsoft Word and I printed it out. So you have got it? --- We do have it,

yes.

Okay, good. What was the nature of the messages? --- It was first a friendly conversation and then (witness is crying). Dawie told me he thinks it is better that we just be friends. Sorry? --- He said he thinks it is better if we are just friends. I did not understand where it came from because I did not think that we were anything more. I just replied like it is a normal conversation and later on in the conversation he sent me a message saying that he would give me an orgasm using just his tongue.

NOTES: ACCUSED

• See Judgment Point D.

• Caroline produced a document where she claim I had a conversation with her, Pienaar tested her and questioned the authenticity of this copied document during the trial and agreed only to accept the document when

Caroline can present the actual computer.

This evidence was not accepted by my counsel.

• The Facebook messages was not complete and there was no proof that it was in fact messages that was send to her from me.

[f] She further testified that sometime during July - October 2008 there were modeling classes at the Fourways Mall. The accused had requested her to assist him in carrying items from his motor vehicle, which was parked in the basement parking of the mall. She duly accompanied him and upon their arrival at the car, the accused pushed her against the car and kissed her on her mouth. The accused

put his tongue into her mouth whilst holding her body. The kiss lasted for a few seconds and when he removed himself she was unable to move as she was shocked. The accused apologised and they then departed for the venue. (5)

5. Transcript Page 331 Para 2 - Okay madam, in the year 2008 there was another incident that also occurred between you and the accused. Can you inform the Court about that? --- During my modelling period we had classes, modelling classes at Fourways Mall. Dawie told me I must help him to carry some things from his car. Yes, madam. --- When we got to his car he pushed me against the car and kissed me. Where did he kiss you, madam? --- He kissed me on the mouth and his tongue was in my mouth. How long did this kiss last for? --- A few seconds. Yes, madam, and then? --- I remember his hands were on my body and then the kiss stopped. But I was shocked so I did not do anything. I could not move. COURT: You say: “I was shocked and I could not move.”

NOTES: ACCUSED

• We did asked Caroline to stand next to me in court to demonstrate the possibility of this claim, it was clear that what she testified was completely not possible.

She did not immediately report this incident to her father as she was shocked and embarrassed. Further, she did not reveal this incident to the other models as they were merely her acquaintances. (6)

NOTES: ACCUSED

6. I could not find any part of the state evidence or cross-examination where this statement was verbalised by Caroline

[g] She subsequently informed her mother about this incident, in light of a further incident. The accused had requested her to work at his house during the vacation. In addition, he told her to wear loose clothing that would come off easily and that she should not wear any underwear. She felt extremely uncomfortable and reported this to her mother. She feigned an illness and as a result did not go to the accused’s residence. She subsequently proceeded to SAPS Hercules in order to lay a complaint against the accused. (7) 5

7. Transcript Page 332 Para 1 - Did you tell anybody about this? --- When I told… I told my mom about it because Dawie arranged for me to go and work at his house during the school holidays. He told me on WhatsApp to wear loose fitting clothes that can come off easily with no underwear. Yes, madam. --- I did not feel comfortable with this so I told my mom because I did not know what to tell him, the reason I cannot go. Madam, you… [Intervenes]. COURT: Sorry, Ms Persad. You said you told your mom because? What was the reason you told your mom? --- I realised it was getting to a place where I will not be able to handle it myself. What would you not be able to handle? --- The things he said to me, like the loose fitting clothes and wearing no underwear. He also said we will not be doing a lot of work. There will be no one home. It was coming closer to the time that I would need to go to his house and I did not know what to say why I could not go.

• I was arrested in 2009 for sexual harassment, the news papers said I asked to swim naked with a girl, I had no idea that it was something Caroline accused me off,

5 According to the records, this was the same case he was arrested for in 2009. This case was heard at the Pretoria Magistrate Court and eventually dismissed. This includes her Statement, the Facebook messages. The court found that the witness did not have sufficient evidence, and the case was dismissed. With that in mind, the accused was charged twice for the same crime, which was already heard and rejected.

• I did testified that I did not ask Caroline to work for me, I was working from home with the Rensleys and did only hear from this when we appeared in court with Caroline.

Transcript Page 332 Para 3 & Page 333

Para 1 - MS PERSAD: Then, madam, you explained to the Court about the accused kissing you. When was this? --- I do not know the exact date. It was in 2008 and it must have been before October month, between July and October. Because I met him the first time in July.

Then, madam, did you report this incident to the South African Police Service? --- We did go and made a case against him. When was that? --- It was at the end of 2008 or the beginning of 2009. At which police station did you report the matter? --- Hercules Police Station. COURT: Hercules Police Station. MS PERSAD: Did anything happen further after you laid a complaint? No, nothing happened further. Did you give them a statement? --- I did give them a statement, my dad wrote out a statement. Then, madam, regarding this Kempton Park case you furnished another statement to the South African Police Service. --- Yes. A new statement because the previous statement was a bit… [Intervenes].

Transcript Page 334 Para 1 - COURT: So let us just go back. The state counsel had asked you: “Did you report the matter at the SAPS” and you said to the Court that at the end of 2008 beginning of 2009 you had made a report to the SAPS Hercules. Then, you then said to this Court that you gave them a statement, nothing happened further. Just tell the Court from there. --- Then, the first statement I made was a bit messy. It was a bit not well constructed. Ja. --- So they took a new one a few years later. Thank you, Ms Persad. 6

[h] She was of the view that the accused had no right to joke with her in the facebook exchange, as she was only 15 years old. In addition, she did not know how to respond as she saw the accused as an authoritative figure. The accused had previously said to her that if she followed what he told her, he would take her and 6 girls to Italy. She did not reprimand him as she stated that the accused was an authoritative figure and that it was not in her a place as a child to do so. (8)

8. Cross-Examination Page 351 Para All

- Ja. --- But in our… all the models we talk, we all said we do not actually know what his actual age was. He might have even been 34. Uh-huh. --- But he said he is 29. He said that to me. Now, why did you… I am asking you again, why did you give that response. “You are only just 14 years older” meaning what? --- It was sarcastic. Sorry? --- It was sarcastic. Sarcastic? --- Yes. Why? --- Because that is my personality, I make jokes to state facts. We were, according to me, friends. I called him ‘oom’ a few times; it was a joke between us. When he asked me why, I told him you are only 14 years older than I am as in a joke. I was as in sarcastic. Madam, from your side, when you made this joke did you expect him, like you say knowing him now, did you expect him to make jokes back? --- We always… we were friendly with everyone. It was not just me and him.

Hmm. --- We were always friendly, always making jokes in the modelling industry. So yes, I did expect him to do that. The rest of the messages, as was read,

6 This confirms that the accused was arrested and on trial in Pretoria. Case dismissed by that Court and convicted by this Court for evidence provisionally accepted as the Defense did not accept it. PAGE 91

I am not going to read it out into the record. I do not want to belabour the record. But the rest of the messages did you then take it up as a joke? --- No. Why not? --- Because I did know him and I knew it was not a joke. The way he had previously touched me, looked at me. We are getting to that. --- Okay. A joke can also just go up to a certain point; you do not make that kind of jokes with 15 year olds. If it was a friendly conversation I think as an adult you do not make that kind of jokes with a 15 year old. Well, with all due respect, Ms Henrico, today’ teenagers and the time when you were a teenager is very different from when I was a teenager. --- I agree, but I was not exposed to things like that and that is why I was so shocked and took this to my mom.

[i] She had reported the conduct of the accused to her mother who is a Captain in the SAPS and subsequently to her father who is employed in the IT industry. Her father assisted her initially to write down the statement at the time when the matter was reported to the SAPS Hercules. (9)

NOTES: ACCUSED

• This facebook messages was copied, pasted into word and like I have mentioned, not verified as I know I have not spoken to

Caroline about any sex or related matters.

9. Cross-Examination Page 372 Para 2 - MR

PIENAAR: At that time was your father not employed in the IT industry? --- Yes. He did not assist you at all in saving these messages? --- I did not tell them when I copied and paste it; they did not know anything yet. My dad was actually… my dad did not help me, no, he did not. Any reason why not? --- I do not know. Because he is an expert when it comes to computers and stuff, do you agree with me? --- Yes, but as a child I think we all should grow up and learn to deal with circumstances on our own. That is why I tried to handle it on my At that time your mother was also in the service of the South African Police Force, is that correct? --- Yes. What was the rank that she had at that time? --- I do not know. I believe she was a… I do not know.

Cross-Examination Page 373 & 374 - Now, when you went to the police station did you then take a copy to be very specific now, let us be very specific. Did you take a copy of Exhibit J1, page 1, 2 and 3 with you to Hercules Police Station? --- Yes. You mentioned… who assisted you there at the police station? Was it Swanepoel? --- I do not know. You do not know. Your statement that was taken at the Police Station was it in Afrikaans or in English? --- I do not know, the statement is available though. What statement? ---The initial one. The Hercules statement? --- I think I did see it afterwards. Where is that statement? --- To be exact, my father wrote the statement, so he wrote it in English because my dad is an ex police officer. So he knew how to do it. He wrote it and I signed it and we gave it in, so he has a copy. He kept a copy you say of that statement? Did your father keep a copy of that statement he made? --- I believe so, I do not know. You know computers crash with thunder. It is on the computer so we can ask him, but he should still have it. Madam, the question, with all due respect, was a very simple one. Does your father have or did he keep a copy of that statement. Now, you mention computer crashing and thunder. Why mention that? --- Because I know a few years ago it was a big thing that the thunder shocked our line and we lost everything. He could recover only some things from the computer. 7

7 The reason why this is so important and well observed by the Defense Advocate was that the Statement and evidence that was handed into

[j] She denied the proposition that it was normal practice for the accused and the models to hug and kiss each other on the cheek when they met. (10)

10. I could not find any part of the state evidence or cross-examination where this statement was verbalised by Caroline

That in essence concluded the evidence of the 5th witness, Henrico.

Judgment Defense Evidence

[n] Counts 6 and 7 (Henrico): He denied all the allegations as contained in the indictment. He stated that he could not have kissed her as she is taller than him. (A) He stated that he did not recall telling Henrico to work for him during the school holidays and denied ever having a conversation wherein he asked her to wear loose fitting clothing. (B) He was not given the reason as to why he was initially being arrested by W/O Swanepoel. (C) He later found out that he was at the SAPS Hercules and appear in court a few times. The matter was subsequently withdrawn against him. He denied ever sending Henrico the messages as per Exhibits J1 – J3 (D)

NOTES: ACCUSED

A. I could not find any part of this in the cross-examination – It must be in the missing transcripts B. This evidence is false, Pienaar did question her and she said I said that no one will be home. She told her mom and to that point in court it was the first I heard of this. The rest of the transcripts are not available so it is not

Swanepoel (WO) at the Hercules Police station would have shown that the new information and the information are different. Instead, she rewrote and backdated the new statement and confirmed that there was an original statement. The question is, why? Was she coached because she had already lost this case before? Is it allowed to have double jeopardy in South African Courts? C. The charges was not withdrawn, the case was dismissed by the court due to not enough evidence.

D. See Judgement point D below

[qq] He met Henrico (counts 6 and 7) through Rensleigh and confirmed that she had done a few competitions with him. Henrico’s father wanted to buy into his business and when the accused exhibited resistance, the relationship between them became strained. He stated that as a result of the aforementioned, Henrico did not have such a close relationship with him. He denied the messages contained in Exhibit “J” and denied the allegations therein. He stated that Henrico was lying to this court when she testified, and further that the documentary evidence has been manufactured. (D) He cited the fact that she had liased with Rensleigh and that this was the cause of her lying to the court. (E) 8

• See point D of the judgement below. I cannot confirm any evidence as I have no access to the rest of the trial record.

JUDGMENT

[44] The complainant Henrico testified in respect of counts 6 and 7. This witness gave her evidence in a clear and concise manner. (a) She stated that the accused initially touched her thigh at a YOTM competition in Fourways. (b) He subsequently kissed her on another occasion on her mouth and his tongue was inside her mouth. It is clear that such conduct clearly falls within the ambit and definition of sexual assault as contemplated in Act 32 of 2007. (c) In addition, this witness produced documentary evidence to this court of a text exchange between the accused and herself wherein he stated that he will make her have an orgasm with his tongue and hands. (d) 9

8 We do not see any problem with that version based on what we saw so far in the court record. ~There is no proof that it is not true. 9 There is no evidence of this. It is her word, PAGE 93

It must be noted that the conspiracy theory was never put to this witness during her cross examination. It was clear that this witness did not have any bias or any other agenda to falsely implicate the accused in the commission of the offences. (e) 10

NOTES: ACCUSED

a. Her evidence was not clear, not concise. She did not answer all the questions. It is just so difficult to highlight all the evidence, because of the incomplete trial record.

b. See Point 1

c. See point 2

d.Defense did not accept the evidence and it was only PROVISIONALLY accepted.

Transcript Page 338 para 2 - COURT: The only way for that determination to be made by this Court is to give the state the opportunity to be able to lead the evidence in respect of that document and at the end it is for the Court to then make the determination, having due regard to the caution in S v BM to the weight that should be applied to the evidence.

Transcripts Page 343 / 344 Para 1 - MR PIENAAR: Indeed, M’Lord. The reason why,

and it is the responsibility of the State to prove the accused guilty. This was not done. The witness gave testimony with a printed word document that had no proof besides the name Dawie, no photo, no bio, nothing and it was also not accepted by the Defense. We find it very difficult to trust the Courts assessment on what is consistent, accurate or concise looking at the history with his judgment in the previous four counts. 10 We disagree with that assessment. The accused had all the right to believe this was Dominique and his wife’s doing. The accused got arrested right after their fight in 2009. The WOSwannepoel interfered with a civil matter on behalf of Dominique, and he was also the same IO who did the investigation and charges against the accused then. Dominique and her parents were house friends, and she was one of Dominique’s models. There are many reasons, and Dominique did testify acknowledge he was the one who asked them to lay charges then and again this time PAGE 94 I just want to place on record, the reason also why we objected to this, because for us it was pretty clear and it has now been confirmed that it was copy and pasted and copy and pasted using a Word document. That is not the original like a Facebook italics et cetera, et cetera.

Transcripts Page 342 Para 2 - MS PERSAD:

M’Lord, the state was not aware of the fact that this document would be in dispute. M’Lord, if it still is on the computer then the computer is not here, unfortunately. So, I would ask the matter to stand down so that we can get the computer to court. COURT: Well, you do not want to perhaps just lead this evidence first and then let us see what Mr Pienaar has to say, whether he would insist on the computer … [Intervenes]. MR PIENAAR: She can produce it just at a later stage. COURT: Yes. MR PIENAAR: Provisionally we can proceed. COURT: Yes. Yes.

E. I CANNOT CONFIRM THIS DUE TO THE MISSING TRIAL RECORD.

PALAVER CONCLUSION

This was quite an interesting case to assess. We would like to address yet another individual that had a history with Dominique and his wife.

The most interesting part of the witness testimony was the accusations regarding the “Facebook” messages. (see below). They are not from Facebook. You can see that they have been made on a office word document and there is no evidence that they have not been tampered with. We agree that the court provisionally accepted those messages with the agreement the original messages must be provided by the witness, this never happened. It is for that reason we do not believe it can be considered. Sadly, it is the second set of

This witness also opened a case in 2009, that was dismissed in the Pretoria Court, yet this court find him guilty? Why? Just because she said so, and could not proof it. The Judge was not interested in facts.

This witness make a lot of claims that you can see was all hearsay and speculation. The State argument was poor and lacked a lot of substance, lucky for her it was quite easy to get away with that and get the convictions she wanted all along.

The court keep on stating that these witnesses are clear and concise,it is the exact opposite. She was not clear, she was not concise and she lied.

The court was more interested in the victim going down, and the opportunity to make an example of him. I am nit making this up, it is in the Judgment, see it for yoursellf.

Bad Judgment

We look at the evidence and we find that the State did not have to proof anything, all that you find is the court feeling sorry for these “victims”.

The court showed severe bias towards the accused. Why a judge was so blinded towards the truth only he can answer, He should be reviewed and not judge another case so complicated.

#NOTGuilty #Speculation