COUNT 1 & 2 - EXPOSURE TO CHILD PORNOGRAPHY

According to the Judgment, the Judge highlighted the following evidence from the State Witnessed that testified.

STATE WITNESS - KEAGAN (PAGE 23)

REF TO POINT D: He knows that his father took pictures of girls and saw them in his father’s bedroom during these sessions. He described one of the girls to be “very naked”, and he stated that he could see her “bum and part of her breast”. He estimated this girl to be between 16 and 18 years old.

REF TO POINT E: He stated that she had a cover on her “front private part” and could see her breasts from the side. He did not see anything covering her breast. In addition, he saw several girls dressed in this fashion standing in a row and awaiting for the accused to take their pictures.

REF TO POINT F: He described the girls as wearing small bikinis and that these “panties were in between their bums”. Michaela was with him at the time when he saw these girls.

REF TO POINT G: He stated that he saw pictures of girls in a similar state of dress on the accused’s computer.

DEFENSE WITNESS - KEAGAN (PAGE 86)

REF TO POINT T: Count 1 and 2: Keagan and Michaela: He denied the allegation that he had exposed his minor children to pornography. His children visited him on alternate weekends and school holidays. He denied doing any photoshoots at his premises. They used to accompany him to do bikini and casual photoshoots. He denied that he had ever exposed them to nude photoshoots. He denied further that the children were ever shown any act that would constitute a sexual offence.

He admitted to watching pornography on one occasion with Sims and described it as an awkward experience, whereupon he burnt the DVD after viewing it. REF TO POINT NN: He stated that Keagan saw him taking photographs of girls in bikinis and denied that the witness had seen part of a model’s breast and bum. He was of the view that the child did not understand the perspective of the photographs as he was still too young. He denied that this witness saw the girls wearing panties and bras.

JUDGE MOOSA - KEAGAN (PAGE 110)

REF TO POINT 41: On count 1, Keagan testified that he saw girls between the ages of 16 —18 years old at the accused’s residence, and they were dressed in such a manner that he was able to see part of their breasts and their bums. He saw a female whose breasts were not covered at the time when the accused was taking photographs of the girls. It is clear from his description that this witness was referring to the models wearing g-strings at the time when he viewed them being photographed by the accused. It was never put to this witness during cross-examination that the accused had never taken photographs of girls in g-strings in the presence of this witness.

In addition, he disclosed to the Assessor from the Teddy Bear Clinic, whose report was handed in by consent as Exhibit [‘AA’] that he had seen “people doing sex” on the accused’s computer and amplifying his response by stating “when they touch each others breasts” This evidence of the witness was never challenged during his cross-examination.

This witness gave his evidence in a clear and satisfactory manner having due regard to his relative youthfulness. It is clear that he would not have been able to provide such a description had he not observed the same. From the evidence led, it is clear that this witness viewed the buttocks of the girls and not the anus. However, he was exposed to girls clad in an explicit manner.

2007, the accused allowed Keagen access to his computer wherein he observed persons presenting themselves in an explicit manner and that the depiction on the computer of the accused was conduct that was sexually suggestive and displayed a form of stimulation of a sexual nature of a persons breasts.

PALAVER’S OBSERVATION

We will focus extensively on point 41 of the Judgment ass this is the base of the guilty conviction. Should the State proof this beyond reasonable doubt the accused then are guilty as charged.. Should we not make such findings based in the witness’s testimony and other evidence led by the accused and his counsel, he is not guilty as charged.

Blow each page you will find our comments as side notes.

THE TRANSCRIPT STATE LEADING THE WITNESS

PERSAT: And what work did your father do? (What work did your father do?) --KEAGAN: He took pictures of girls. PERSAT: Now Keegan, remember we consulted about this, and you informed me that these girls that your father was taking photographs of, you have seen. Do you remember that? (Do you remember when were consulting with the Advocate that you said to the Advocate, the girls that your father were taking pictures of, you have seen them? Do you remember that?) KEAGAN: Yes. PERSAT: Can you tell the Court what you saw? (Can you please tell the Court what you saw?) KEAGAN: Some girls were wearing bikinis and I can remember one girl, she was umm, she was very naked and I could see her bum from the behind. From the side, I could see a part of her breast and umm, ja 1 PERSAT: Can you tell the Court what you saw? (Can you please tell the Court what you saw?) KEAGAN: Some girls were wearing bikinis and I can remember one girl, she was umm, she was very naked and I could see her bum from the behind. From the side, I could see a part of her breast and umm, ja. PERSAT: Keegan, did you see this girl in person or did you see this girl any where else? (Dld you see this girl in person or did you see the girl any where else?) KEAGAN I do not understand. PERSAT: Okay, where did you see this girl? (Where did you see this girl?) KEAGAN: In my father’s room. PERSAT: Okay, umm what clothes did this girl have on? (What clothes did this girl have on?) KEAGAN: She just had some umm, umm, umm a cover by the front, by the front private parts PERSAT: Then Keegan, do you remember saying to the Court that from the side that you could see her breast? Can you explain to the Court what you mean by that? (Do you remember saying to the Court that from the side you could see her breast? Can you please explain to the Court what you, what you mean by that?) KEAGAN: I saw a part of her breasts from the side.2 PERSAT: And where there any other girls that you saw at your father’s house that were dressed in that way? (Where there any other girls in, that you saw at your father’s house that were dressed that way?) KEAGAN: Yes. PERSAT: Explain to the Court, what you saw? (Explain to the Court what you saw?) KEAGAN: I saw girls standing in a row, waiting for my father to take a picture. 3

2 State advocate intends to confirm the model’s nudity; the witness cleared this up and said he only saw “part” of her breast. This does not confirm nudity. We searched on Google “Models in Bikini’s and “Models in Swimwear”, and it is expected that models in those shoots wear bikinis whose side or part of the breast is displayed, including a large part of the bum or bum cheeks. It is not uncommon or unfamiliar. 3 We looked at the intention and purpose of the place and the shoot mentioned above surroundings. Here the witness is telling the court that while he was sitting and observing the shoot, his father and many other models were also

PERSAT: What clothes did they have on? (What clothes did they have on?) KEAGAN: Most of them were wearing bikinis but very, very, umm, very little, very small bikinis. I could see their bum because it looked to me as like they put their panty in between their bum. 4 PIENAAR: [intervened). PERSAT: Keegan, just the last bit of what you explained, can you say it clearly into the microphone, please? (Keegan, just the last bit of what you explained, can you please say it over the microphone?) KEAGAN: Umm, I saw, I saw girls who put their panties in between their bum. PERSAT: Keegan, before we adjourned, you were describing the small bikinis to the Court. Do you remember that? (Before we adjourned, you were describing the small bikinis to the Court. Do you remember that?) KEAGAN: yes. PERSAT: Okay Keegan, now you explain to the Court the back of the umm, panties that were worn by these girls. Can you describe what you saw at the front? (You described also the back of the panties that you saw the girls wearing. Can you describe the front?) 5 KEAGAN: Yes, I can describe the front. PERSAT: Please describe it Keegan? (Please describe the front?)

watching the shoot. Again this is common from a photography point of view. The accused did not do it in secret, nor was it done with unlawful intent. 4 Here the witness is telling the court that those models who were waiting their turn to be photographed were wearing bikini’s that to the witness “LOOKED” small. I considered the child’s age from the time the shoot took place to the time he gave his testimony. At the shoot, the witness was only 4 years of age; by the time he testified over 3 years later, he was just over 7 years of age. The witness is not verbalizing that his father was doing an illegal shoot. We are seeing from this that the witness was interested in his father’s work and that this particular shoot, which was a standard bikini shoot in the photography industry, was just that. 5 Here, the State advocate leads the witness with a false narrative that he testified or mentioned “panties”. The witness did not mention panties; it was clear he said “small bikinis” this is misleading by the State. KEAGAN: In the front it is like a normal bikini but at the back it was not. It was umm, it was like a panty in between their bum. 6 PERSAT: Now, are there any other girls that you saw the front of their panties? (Are there any other girls that you saw the front of their panties?) 7 KEAGAN: No. PERSAT: Okay then Keegan, earlier you told the Court that there was one girl that you saw her breast. Do you remember that? (You told the Court intervened.) PERSAT: Where you saw... Sorry Keegan, where you saw a part of her breast. Do you remember that? (Do you remember telling the Court that you saw part of the breasts?) 8 KEAGAN: Yes. PERSAT: Can you estimate to the Court, how old do you think that girl was? (Can you estimate to the Court, how old you think that girl was?) KEAGAN: I think about 16 or 18. [intervened] MR PIENAAR: M’Lord, sorry 1 must object to

6 The State is trying to get the witness to imply that he could have seen the model’s vagina. The witness cleared that up by again testifying that the model wore a regular bikini. He did not say that it was underwear. He said it was “a normal bikini” Ti this point, and we can confirm there is no explicit sexual content or wrongdoing by the accused. 7 The State, for the second time, is telling the witness that he mentioned panties. There is a massive difference referring to a pantie and a bikini. One is a model used to swim and move around in public, the other is private and a personal clothing item. The State Advocate leads the questioning to the witness, and with that intention, the witness still does not imply that he saw any of the models in panties nor their private parts. 8 For the 3rd time, the State Advocate uses her questioning to imply that the accused exposed the witness to the models in an explicit manner. She immediately corrected herself and referred to the model’s breast “part of her breast” All the witness did was confirm that he did not see the model naked; he only saw what was sticking out from what was not covered by the bikini. We are still looking for a crime here and can only get that the witness did not see any model naked, not in an explicit way. This is how any 7-year old male child would have described models in a typical bikini shoot. PAGE 9

that question. He is not an expert on this. COURT: Ms Persad. PERSAT: That is true, M’Lord but the witness did say that he saw the girl, which means he would be able to give you an idea. There is a difference between an one year old, a ten year old, and a twenty-year-old. 9 COURT: Opinion. PERSAT: Yes. It is, I do agree, just the witness’s opinion. COURT: Nothing can flow from it. PERSAT: Yes, M’Lord COURT: Okay. The Court will allow it. PERSAT: As the Court pleases, M’Lord. M’Lord, he had already answered it. He said about 16 or 18 years. COURT: Okay. PERSAT: Was there anybody with you, when you saw this girl? (Was there anybody with you, when you saw these girls?) KEAGAN: Yes. PERSAT: Who was with you? (Who was with you?) KEAGAN: My sister. PERSAT: M’Lord, I need to clarify something. 1 was referring to this particular girl but I think there is a miss understanding between the intermediary and me because she, she put the witness girls but 1 was referring to one particular girl. So, I want ...[intervened] PERSAT: Yes. Umm, Keegan let us talk again about this girl that you said that you saw, a part of her breast, who you said to the Court is probably about 16 or 18 years old. Do you remember that? (Keegan, can you talk to the Court about the girl that you said you saw part of her breasts, who you indicated that she could be 16 or 18 years old?) KEAGAN: Yes. PERSAT: Was anybody with you, when you

9 We cannot agree with the State Advocate here. The child saw the models when he was only 4 years old, now he is testifying about a shoot 3 years later, and the State asked him a perception question that no child of that age can guess. This question is irresponsible with the intent to get a minor to assume and imply that the models the accused took photos of were minors. The intention of the State is clear. The court should not tolerate this kind of questioning. PAGE 10 saw that girl? (Was anybody with you, when you saw that girl?) KEAGAN: Yes. PERSAT: Who was with you? (Who was with you?) KEAGAN: My sister. PERSAT: And your sister’s name is? (And your sister’s names is?) KEAGAN: Mikyla. PERSAT: Now, this girl that you were talking about that you saw a part of her breasts, did sheLi_i have anything covering her breasts? (This girl that you were talking about that you saw a part of her breasts, did she have anything covering her breasts?) KEAGAN: No. 10 PERSAT: Okay Keegan and then Keegan is there anything that you watched on your dad’s computer that you wish to tell the Court about? (Keegan, is there anything that you watched on your dad’s computer that you would like to tell the Court about?) KEAGAN: Yes. PERSAT: You can tell the Court, Keegan. (You can tell the Court.) KEAGAN: I saw a few girls umm, almost the same as the previous girl that I was talking about and some of them who were wearing clothes. 11

10 This question is widely speculative and leading. The witness already said he only saw part of the model’s breast. He also already confirmed that the models were not naked, and to as an openended question is confusing to a child of that age and hard to follow. As we assess this from the outside, we have to try and think like a 7-year old and how the question was constructed. The State is trying to prove that the witness saw models naked and explicitly. The question does not give much thought to it: What kind of cover is the State Advocate referring to? She does not ask the witness directly if she had a bikini top on. A cover could be anything, a bikini top is exactly what it is, and the child witness did already testify that she had a bikini top on as he could only see PART of her breast. 11 The State Advocate asked the witness about what he saw on the accused computer, and he confirmed that all he saw were models like what he saw at the bikini shoot. The witness said that’s all he saw. We also studied the Teddy Bear Clinic Reports. With the State’s evidence, it is clear that this witness

PERSAT: And is that all that you saw? (Is that all that you saw?) KEAGAN: Umm, I do not think so but I cannot remember umm PERSAT: Thank you, M’Lord. I have no further questions for this witness. M’Lord, sorry M’Lord. Just one minute. PERSAT: Keegan, you remember when we consulted, I said to you that there is another lawyer in court? (Keegan, you remember when you consulted with Advocate that she said to you, there is another lawyer in court. Do you remember that?) 12 KEAGAN: Yes. PERSAT: Yes and Keegan, I also said to you that he can ask you questions. Do you remember that? (She also told you that he could also ask you questions. Do you remember that?) KEAGAN: Yes. PERSAT: Okay. So Keegan, I am done with my questions for you. It is now his turn. So, he is going to talk to you. (The Advocate is done with his questions, with her questions to you and now it is the lawyer’s turn to talk to you. Okay?) --- Okay. PERSAT: Thank you M’Lord.

NOTES FROM THE ACCUSED

• Persat kept asking Keagan questions about the girls and what they wore on the shoot day. Numerous times, Keagan explained that he saw girls in bikinis, but one particular girl he guessed was between 16 and 18 wearing a bikini with her bikini bottom looking like a “g-String”. He further explained that he only saw PART of her bum and the side of her breast. • Persat asked Keagan very specifically about what he saw on my computer, and

did not testify that he was exposed to any form of nudity/pornography or models explicitly or sexually. 12 The State concluded their questioning and has no proof that the witness was exposed to pornography beyond a reasonable doubt. We will now go back to point 41 of the Judgment. The court states that the models were “clad” explicitly. This is not true; the observation from the court was not proven nor verbalized by the witness. Therefore, the court was not correct in his Judgment, and the accused are not guilty of this charge. Keagan said, “I saw a few girls umm, almost the same as the previous girl that

I was talking about and some of them who were wearing clothes.” • In the State’s evidence that Persat led, she did not establish any form explicitly related to the girls at the shoot. She also could not prove or demonstrate that what he saw on my computer was nudity or any form of explicit material related to the charges.

Persat also did not tell Keagan what was written in the Teddy Bear Clinic report that he did not see any naked girls doing sex or even touching themselves. 13

THE TRANSCRIPT DEFENSE CROSS THE WITNESS

PIENAAR: Now, you also said, before we come to this lady that there were girls in bikinis at the house. Is that correct? (You also said that umm, before you could come to this lady, there were girls, other girls in bikinis in the house. Is that correct? KEAGAN: Yes. PIENAAR: And your father then took photographs of them. Is that correct? (And your father was going to take photographs of the girls. Is that correct?) KEAGAN: Yes. PIENAAR: And you know, do you know that these girls were models? That was the reason, why your father took photos? (Do you know that this girls were models? That is the reason, why your father took photos?)

13 We have to agree with the accused observation here. The State Advocate did not prove the charge of Exposing the witness to pornography. One could have the wildest imagination, and it still does not constitute a crime. We must add that young and older women walk on beaches with their bums exposed, wearing bikinis that do not cover the entire bum. TV Ads, magazines, and other advertising material demonstrate a similar shoot and environment as the witness testified about. There is and was not a crime committed here; if the court says that he did, he then is making almost every parent a criminal and potentially creating a new standard that can never be accepted not in South Africa, nor any other part of the world. PAGE 11

KEAGAN: Yes. 14 PIENAAR: Your father also took photographs of your of you, in a cowboy outfit. Can you remember that? KEAGAN: Yes. PIENAAR; Now, this girl that you told us that you saw a part of her breast, did she have a bikini top on? (This girl that you told the Court about that you saw a part of her breast, did she have a bikini top on her?) KEAGAN: I do not understand umm what you mean. I do no understand...[intervened] COURT: What the Advocate wants to know, is that this girl that we are talking about, the girl we are talking about, currently is the one who you saw her breast partly exposed. Do you remember that? KEAGAN: Yes. 15 COURT: Now, what the Advocate wants to know is, when you saw this girl, did you see if she had a bikini top on? COURT: It means that umm, counsel are you meaning a bikini top on the breast? PIENAAR: Yes. COURT: What counsel wants to know is that did you see if this girl had on a bikini top? If she was wearing a bikini top over her breasts? KEAGAN: No. PIENAAR: So, you know what a bikini top is? Is that correct? (Do you know what a bikini top 14 The Defense Advocate asked an important question, which removes the question of lawfulness and intent. The witness was aware it was models, and he was aware that it was what his father did for a living. The State Advocate said that the accused “willingly, and unlawfully exposed the witness to child pornography. This did not happen. The accused did a bikini shoot with numerous models while the witness and his sister were with him. The children were not there alone, and many other models saw what the witness saw. I failed to mention that we did not observe the State calling any other witnesses to verify that the bikini shoot was done explicitly as the court claimed he did. The duty to prove to the court that the accused is guilty of a crime is their responsibility, and the State did not prove this. 15 The State advocate asked the witness this question, and here the Defense is correcting that. This is further proof that the witness never saw any model in any form of nudity or clad explicitly, as the court stated. PAGE 12 is?) KEAGAN: Umm, not really. PIENAAR: Do you know what a bikini is then? (Do you know what a bikini is?) --- Yes. What is that? (What is a bikini?) KEAGAN: A bikini is what girls, umm what girls wear umm, I do not know what to explain. PIENAAR: Okay. Let me then ask you this. Did this girl, with her breast, where you saw part of her breast, did she have a bikini on? (Umm, this girl that you saw part of her breast, did she have a bikini on?) KEAGAN: Not a bikini. 16 PIENAAR: What was she wearing? (What was she wearing?) KEAGAN: Umm, by the front private part, there was just a cover. Only by the front private parts. 17 PIENAAR: Can I quickly just approach my [indistinct — 14:19:28] attorney, M’Lord? PIENAAR: Now, Keegan can you remember that umm at the time or let me ask you this. Can you remember a lady by the name of auntie Esme? (Auntie Ester?) Esme. (Esma?) Esme, E-s-m-e. (Umm, do you remember a lady by the name Esma?) KEAGAN: No. PIENAAR: Esme, not Esma. (Esme, Esme?) KEAGAN: No. ...[intervened]. COURT: The question that counsel put was is, do you remember the name of a lady, by the name of Aunt Esme? Aunt Esme?

16 The witness is confused and unsure what a bikini is, clearly overwhelmed by the questioning. However, what is evident is that the witness did not say he saw her nipples of bare breasts. Instead, he only saw part of it, which means a bikini top must have covered it. 17 We have to point this out again, referring to our previous observation. The witness previously testified that the model had a bikini bottom on; now, he is referring to only a cover. It is clear that this witness no longer is following the questioning and referring to something else. Even though he still cannot see or say he saw anything sexual, the witness is now becoming inconsistent. The witness is only 9, and he is telling and recalling stuff that happened when he was 6. It is not easy or even possible for any child to give a clear and accurate account of things at such a young age.

MS MUHLARE: Do you remember umm, lady by the name of Aunt Esme? KEAGAN: No. PIENAAR: Can you remember at a time, about three years or two years ago that you were at the Teddy Bear Clinic? (Do you remember the time about two or three years ago, when you were at the Teddy Bear Clinic?) KEAGAN: Yes. PIENAAR: And can you remember that you talked there to a lady? (Do you remember that you spoke there to a lady?) KEAGAN: Yes. PIENAAR: Now, she asked you questions about what happened there at your father’s house, when you and your sister visited him. Is that correct? (This lady asked you questions about what happened at your father’s house, when you and your sister visited. Can you remember that?) KEAGAN: Yes. PIENAAR: Now, umm you were not there only on once or you were not there only on one occasion, you went back to see her again and then you went back to talk to her again. So, it was three times that you went to talk to this lady. Can you remember that? (Umm, you were not there once to talk to the lady. You went there again, again. Meaning that you went three times to talk to the lady. Can you remember that?) KEAGAN: No, I can only remember talking to her twice PIENAAR: Twice. Now, did you or let me ask you this. Now this, this lady that you talked to, do you know what was her name? (This lady that you talked to, umm do you know what her name was?) KEAGAN: No. PIENAAR: Now, when she asked you questions about what happened there at daddy, at your dad’s house, did you umm, did you tell her about this lady that you, that you saw part of her breasts and that she only had something covering her front part? (Keegan umm, when that lady at the Teddy Bear Clinic, asked you about what happened, what you saw at the house. Did you tell her about the lady that you saw part of her breast?) KEAGAN: Yes. (Did you?) KEAGAN: Yes. PIENAAR: Can you remember if she asked you if you saw any naked girls also in your father’s house? (Do you remember if she asked you about if you, if you have seen any naked girls in your father’s house?) KEAGAN: Repeat the question, please. PIENAAR: Can you remember if she asked you whether you have seen any naked girls that is girls wearing nothing, in your father’s house? (Do you remember if the lady asked you, if you had seen any naked girls at your father’s house?) KEAGAN: Yes. PIENAAR: Yes and what did you say to her? (What did you say to her?) KEAGAN: Umm, I told her that I saw umm, I saw her bum and part of her breasts. PIENAAR: Now Keegan, I have got the notes that this lady wrote down when she asked you this question. (The Advocate says, he has got the notes, where the lady wrote down, when she asked you that question.) KEAGAN: [No answer]. PIENAAR: And the answer to this question, whether you had seen any naked girls in your father’s house. She wrote down that say: “No, not in your father’s or in your mother’s house”... [intervened] COURT: Sorry, Advocate Pienaar. Can I just ask, is the witness going to be called? PIENAAR: I believe so M’Lord. I took it up with my learned friend and she says, she is going to call this witness. PIENAAR: I will just repeat for you, ma’am. What the lady has written down to this question, whether he has seen any naked girls in his father’s house? She wrote down: “No, he has not seen any, not in his father’s or his mother’s house.” (Now Keegan, when you spoke to the L.... lady, when she asked you, if you had seen any naked girls, what she wrote there is, you said you did not see any umm, girls not in your dad, in your father’s house and also not in your mother’s house. What do you say about that?) KEAGAN: Umm, I do not know what to say. Okay that is fine...[intervened] COURT: So, what is the answer? I do not want

to say? PIENAAR: He does not know what to say. PIENAAR: Now, this girl that you say that you saw, the one with the part of her breast, where in the house did you see her? (This girl that you say that you saw part of her breast at the house. Which part of the house did you see her?) KEAGAN: Umm, in my father’s room. PIENAAR: Was she at the time when you saw her in the room, was she on the bed? (The time you saw her in the room, was she on the bed?) KEAGAN: Yes. PIENAAR: Was she lying down? (Was she lying down?) KEAGAN: No. PIENAAR: What was she doing? (What was she doing?) KEAGAN: She was putting her hands on the wall and looking back. 18 PIENAAR: Now, when she had her hands against the wall, looking back. Was her back then, the back side of her, is that what you then see? (When she was putting her hands on the wall, umm the back side of her, is that what you saw?) KEAGAN: Yes. PIENAAR: Now Keegan, after you saw the lady at Teddy Bear Clinic, roughly about a year later, I know you do not know time but more or less a year later. Did you, did the police come to you and talk to you about what happened there at your father’s house? (After you had seen the girl at your father’s house, after some time, say ...[intervened]. COURT: The question is, after you saw the lady at the Teddy Bear Clinic, plus minus one year later, did the South African Police Services, members of the SAPS come to you and speak to you about what you saw at your father’s house. PIENAAR: (Sorry, Keegan. Here is the correct

18 This question is crucial as it allows us to assess where the witness was in relation to the model’s position. He said she was looking back, and this means the accused took photos from her with her back facing the accused and the witness. This also confirms what the witness could and could not see, along with the models waiting their turn. PAGE 14 question. After you had seen the lady at the Teddy Bear Clinic, after a year or so. Did members of the South African Police come to your house?) KEAGAN: Yes. PIENAAR: Did they talk to you? (Did they talk to you?) KEAGAN: Yes. PIENAAR: Did they write down what you were saying? (Did they?) Did they write down what he was saying? (Did they write down what you were saying to them?) KEAGAN: Yes. PIENAAR: Now, did you tell them about this lady? (Did you tell them about this lady?) KEAGAN: Yes. PIENAAR: Now, when they wrote down, afterwards did they ask you to sign this statement or what they were writing down? (After you had spoken to them, they were writing down. Did they ask you to sign where they had written?) KEAGAN: Yes. PIENAAR: Before they ask you to sign, did they read, did they read what you umm. Did they read back to you what you were saying to them? (Before you could sign where they wrote, did they read back to you what you told them?) KEAGAN: I cannot remember...[intervened] COURT: Sorry Mr Pienaar, [indistinct — 14:30:58] appropriate for you to put to the witness, did they read back, what they in fact wrote? PIENAAR: Umm, M’Lord. COURT: Because I think where you heading to is obviously, you want to put a statement to the witness and you are saying: “Did they read back what you in fact told them?” PIENAAR: Yes. COURT: But I suspect that you are heading to what is containing in the statement. PIENAAR: Yes. COURT: And do you not think the more appropriate thing would be to say: “Did they read back what was written in the statement to you?” PIENAAR: Yes. COURT: Okay.

PIENAAR: I will just rephrase it. COURT: Okay. PIENAAR: Did they read back to you what was written in the statement? (Did they read back to you what was written In the statement?) KEAGAN: I cannot remember. PIENAAR: When you talked to the police, was your mother with you? (When you talked to the police, was your mother with you?) KEAGAN: Yes. PIENAAR: And when you signed or when you signed your statement, did your mother umm, was she then with you when you signed it? (When you signed the statement, was your mother with you?) KEAGAN: Yes...[Intervened) PIENAAR: Umm, when was the last time that you saw your dad, Dawie? (When was the last time Keegan that you saw your dad, Dawie?) KEAGAN: Umm, I think three years ago. PIENAAR: Do you know why you umm that was the last time that you saw him? (Do you know why that was the last time that you saw him?) KEAGAN: No. PIENAAR: Did you ask your mother if you can go visit your dad, Dawie? (Did you ask your mother if you could go visit your dad, Dawie?) KEAGAN: Umm, yes. PIENAAR: What did she say? (What did she say?) KEAGAN: Umm, she said no. Umm, she told me my father was in jail. PIENAAR: Are you cross with your dad? (M’Lord, the witness has a problem down. Umm, if he could be given time for him to ...) ...[intervened]. COURT: Yes, Advocate Pienaar, can we just have few moments for the witness to just recompose himself? COURT: Just wait for a few moments. PIENAAR: Yes. COURT: Can you just explain to the witness that it is quite in order for him to become emotional. He must not feel for one moment that he needs to suppress himself. It is quite in order. If you can just explain that to him. MS MUHLARE: Keegan, crying is in order. Okay? It is fine to cry. So, do not feel that you are doing a bad thing but we will give you time to recompose. KEAGAN: Okay. MS MUHLARE: Keegan, can we go on? KEAGAN: Yes. COURT: Are you in a position... The last question that the Advocate asked you is, are you cross with your dad? KEAGAN: No. 19 PIENAAR: Thank you, M’Lord. I have got no further questions. COURT: No further questions. Ms Persad, any re-examination? NO RE-EXAMINATION BY MS PERSAT: No re-examination M’Lord. COURT: Thank you. This witness may be excused.

ACCUSED NOTES

• Judge Moosa concluded our evidence and stated that I denied doing any photo shoots at this premises. I am not sure what shoot he is referring to? I never rejected doing any photo shoots at my house; however, we did not do many different shoots at my house throughout the trial. Unfortunately, I do not have evidence to prove this, as my evidence disappeared. 20

• Judge Moosa also stated that we did not put to Keagan that we did not do shoots in G-Strings; I am not sure why we had to do that as Keagan at the time of the shoot was only seven, and he said in the crossquestioning with PERSAT: “Most of them

19 This is highly emotional and sad. We understood that this was the first time in three years since the witness saw his dad the last time. However, the witness said he was not upset with his dad, and the witness displayed no disappointment either. This does not look like children that were abused in any form. 20 We also did not see any evidence of this. If it is in the accused Chief-Evidence, we cannot deny not confirm this. Should this be in the case, we took a look at how this could have an impact on the accusation. If he said he did not do photo shoots at his home, that makes no difference to the case. If the accused did photo shoots at his home and does not believe the kids referred to that shoot at his home, it again makes no difference, and nothing can be taken from it. PAGE 15

were wearing bikinis but very, very, umm, very little, very small bikinis. I could see their bum because it looked to me as like they put their panty in between their bum.” Keagan did not say it was a G-string, and he would not have known what it was either. He made it clear that it LOOKED like they put their panties between their bum. He also stated that it was small bikinis and did not know what a bikini was. He only said he saw the girls burn from the back. The State also did not mention that he says a G-String leading the evidence. Keagan would not have known or understood what a g-string is to accurately answer the question even if we put it to him. You get many different types of bikinis, and we cannot assume that he was referring to g-strings just because he said it LOOKED like they put their panties between their bum. The Teddy Bear Clinic’s report clearly states that Keagan perceived bikinis as underwear on page 7 (76). When I discussed this with Pienaar, and we looked at the statute of the Law, it does not make it illegal for a child or minor to see girls/ women in bikinis or so-called G-Strings. 21

• Pienaar also asked Keagan if he saw anything on my computer, and he said he only saw what he saw at the shoot, referring to bikini and casual clothes. He also referred to the Teddy Bear clinics feedback in the report, where he clearly did not say there was any nudity when he saw the models on the computer. “Judge Moosa went further and highlighted in his summary the following; In addition, he disclosed to the assessor from the Teddy Bear Clinic, whose report was handed in

21 We took what the accused said here and understood the frustration. However, here is the point in all of that. The State failed to prove child pornography. The State could not prove the charges against the accused irrespective of what you call a bikini. One should not focus on the language of a minor at such a young age. We need to focus on the charges and if the accused committed a crime. There is no crime here. PAGE 16

by consent as Exhibit [‘AA’] that he had seen “people doing sex” on the accused’s computer and amplifying his response by stating “when they touch each other’s breasts” .27 This evidence of the witness was never challenged during his crossexamination.” 22 • I am concerned that the State did not put this to Keagan, yet judge Moosa put it against me to say that we did not challenge

Keagan with this either. In consultation, in her first session with Keagan, the Assessor questioned Keagan and asked him to explain this (see page 8 of the Teddybear

Clinic report) and made it clear that

Keagan could not give further information.

They did not mention this in the second session. He was asked in the last and final session if he saw any naked girls at my house, and he said he did not ever

see any naked girls at my home or his

mother’s house. He made it clear that the models at the shoot had bikinis and regular clothes. 23

22 This is important to discuss. The State claims that the accused exposed his children to Child Pornography. We don’t understand if the charges are about the shoot at his house or what the witness says he saw on the accused computer. Which one is it? The State is not clear where the crime was committed, they also are using the shoot to say that was the place of the crime, yet they use the computer to justify the exposure. It is not clear and not related either. We will break this down as follow; The bikini shoot at the accused house was legit, and there was no crime. The computer images that were testified about was not sexual content. During his testimony, the witness made it clear that it was photos similar to what he saw at the shoot. The Teddy Bear Clinic addressed that in detail and concluded that what the child spoke about was not pornography or models in sexual or explicit poses. There is no clear evidence from a quoted word or phrase that it was sexual and not explicit. The child was 6 when he saw the photos, and he made no mention during the trial that those photos were sexual or explicit. The court made a massive error and did take this out of context. 23 The accused is stating an important fact here. The State produces no evidence, not the Teddy Bear Clinic that the witness was ever exposed to

PERSAT did not ask Keagan anything about this to clarify the matter. However, we did look at the entire report from the Teddybear clinic. It was evident that Keagan referred to “naked” girls as being dressed in bikinis and the Assessor concluded on page 11,

paragraph 4 that he was NOT exposed to sexual intercourse and what he did see on my computer was in fact of girls posing, which was the editing of the photos and not sexual content. (Girl’s touching their breasts could have been a pose (with a bikini on NOT naked as he said on many occasions he did not see naked girls) that one of the girls did on a photo I was editing.) In point 8 of her conclusion, the Assessor of the Teddybear Clinic comes to the following observations; “NO EXPOSURE TO EXPLICIT PORNOGRAPHY MATERIAL WAS VERBALISED BY THE CHILD.” 24

Judge Moosa used the Teddybear Clinic’s report against me as evidence to find me Guilty of the following charge.

COUNT 1: Keagan De Villiers, exposure of

any nude models, nor verbalised that the models wore clothes of a sexual nature. The fact here is the opposite. The witness only experienced shoots with models in bikinis and regular casual clothes. 24 After carefully assessing the State Evidence, including the witness’s testimony, the crossexamination of the Defense, and the Teddy Bear Clinic Report (Exhibit “AA”), this concludes that the State did not prove a crime. We cannot ignore Teddy Bear Clinic’s “Esme” the psychologist’s findings, and the court failed to consider that report in its complete form. The court took the idea and perception of the State, not the witness and convicted the accused of doing a regular photo shoot. I have to ask an obvious question the State failed to bring to the courts’ attention. The SAPS had access to all the accused computers, including hard drives, yet we do not see any supporting evidence of a shoot where the accused took photos of models in bikini’s where their breasts were exposed. The State did also not provide a picture of models he took photos of that was dressed explicitly. The State did not prove that the accused exposed the witness to any model in any clothes being of a sexual nature or clad explicitly as the count stated. child pornography, or pornography to a child, in that upon or about the period March 2011 to March 2013 and at or near Kempton Park in the district of Kempton Park the accused did unlawfully and intentionally expose Keagan De Villiers to child pornography or pornography. 25

• It is clear that there was never any child pornography or pornography established by the State or by the Teddy Bear Clinic, yet the Judge used one part of the report out of context. It was also clear that Judge

Moosa took upon himself to complete the work of the State to place a crime against me where the State failed to prove the charge against me. It is clear that Judge

Moosa only used particular parts of the

Teddy Bear Clinic Report of what was said by Keagan but ignored the professional opinion of Esme and her observation and the conclusion or report as a totality.

Pienaar asked Keagan if he saw anything else on my computer, and Keagan said just what he saw at the shoot, so there was no need to dig deeper into it. Keagan also said that he saw it, not that I showed it to him or forced him to look at anything, so except for the fact that the Teddy Bear Clinic clearly said I never exposed Keagan to explicit pornographic material, I do not see how he can use that to say I intentionally exposed him to pornography, let alone

CHILD pornography.

SEE ADDRESS RELATED TO KEAGAN’S EVIDENCE — TRANSCRIPT DATED 20160927 PAGE 1-7

PALAVER CONCLUSION ON FINDINGS

These were the first two charges. To think that the accused two kids were testifying

25 We do not believe that the accused ever exposed his kids to child pornography or pornography. This charge is a wildly speculative charge with no basis of intent or unlawfulness. The fact that the court ignored a vital part of the evidence is creating a question, “on what did he based his judgment if what the State had was nothing?” PAGE 17

against their father where the State alleged he exposed his children to child pornography or pornography. What was more worrying was the allegation that he did it with intent.

We are of the opinion that both these charges were made against the accused to weaken his case. What could be worse in the public’s eyes than a father who could do such a horrible thing to his own children? We could not find any evidence that the accused did expose his kids to pornography. The court made a huge mistake to use phrases in a report to find him guilty on these charges.

The court did not consider the facts and the Teddy Bear Clinic Report in its totality. After three different assessments with a professional child psychologist, the findings on both kids were that they had the perception that a bikini is “bra’s and Panties” at a very young age. It was voiced in the report and the testimony of both kids that they were not exposed to any explicit “clad”, as the Judge stated. It is out of context, misdirected and not true.

The accused children demonstrated that they love their father. Both the kids were very young at the time of these shoots. Despite the effort from the State to come to the conclusion that the accused willingly and unlawfully with intent exposed the kids to pornography, it still does not meet the test to prove him guilty beyond a reasonable doubt.

I have to agree with the accused that the State had no case and that the court convicted him even though there was insufficient evidence, if any at all, to convict him.

HE IS NOT GUILTY.

MICHAELA DE VILLIERS

JUDGEMENT – STATE EVIDENCE

[d] She stated that the girls had to go to the bathroom in order to put on their panties and bras. (1) During this time she saw their breasts and bums. On occasion, she saw some of the girls wearing shorts, panties and bras.

Michaela Trial Record - SS207-2014 REC (2015-10-07) VOL 1

Transcript Page 63 para 2 MS PERSAD:

These girls that you said that your Dawiedad took photographs of, did you see them? (These girls that you say your Dawie-dad took photographs of, did you see them?) --- Yes. And then Mikyla, what were they wearing? (What were they wearing?) --- One day, once the girls umm, had to go into the bathroom and I had to go with them and then I went with them and they were going to put on their panties and their bra but I saw their breasts and some of the private parts and I

also saw their bum. 26

And besides these girls, did you see any other girls and if you did, can you tell us what they were wearing? (Besides these girls, did you see any other girls and if you did what were they wearing?) --- Other girls, one

another day, we went somewhere and then

my dad was taking photos of other girls. Some were in their shorts and some were just in their panties and bra. (1) 27

26 Michaela was 3 at the time of the shoot at the accused house, and she now is 6 or 7 testifying about the shoot. The State Advocate asked the witness what the models were wearing at the shoot, and we found that question strange and particular direct. If I ask my daughter what she wore a weak ago, she cannot answer me; here, a very young minor is asked to recall a particular shoot of a specific place when she was only 3 at the time? I can only conclude that someone discussed this with this child and told her. It is not justifiable to ask a child of this age about specific events. 27 TIt is the point I was trying to make. The witness is not direct in her answer, and the witness

ACCUSE NOTES:

1 This was the first I heard of that. ~ Michaela was 3 the last time I saw her and about the same age. It was typical for the models and parents to look after Michaela when I was busy with the photos. Keagan was with me, and she was with the models. I did not tell her to go to the bathroom with the models, but on a typical day, Michaela was with the girls when `I was working. I don’t see how it is pornography in the first place if they were just getting dressed, and it is even more bizarre to say I am guilty of a criminal offence as there was no intent again, and it is not unlawful for people to look after my daughter. Should the models who took Michaela to the bathroom not be arrested and accused of this crime?

Transcript Page 64 Para 2 I think the girl’s name was Nicky, she had blond hair and then her mother dropped her off and then we went there in the beach and then she was in her panty and bra, and my dad used to take photos of her against the rocks (2) and me and my brother were playing. 28

2 – It is clear that the bikini to Michaela was

use language like “another day” and “somewhere”. How can the court allow a child witness of such a young age to speculate? Her answer could be to any shoot at any given time. It is one of the worst State questionings we have even come across in our lifetime. The witness refers to the models being in their panties and bra. We studied the Teddy Bear Clinic’s assessment to get a professional opinion on how the witness viewed the models and their clothing according to her. They concluded that the witness does not refer to underwear but bikinis. 28 We did do a lot of research to understand where this shoot took place. It was a shoot when the accused took the kids with him to East London. The models’ name was not Nicky. However, she did have long blond hair, and we did take a look at the photos. It was a bikini shoot with two sisters on the main beach in East London. This confirms that the witness does not see a difference between a bikini and a bra and panty. To the witness, it is the same thing.

JUDGEMENT – JUDGE

Judgement page 110 & 111

On count 2, Michaela testified that on an occasion when she visited her father, she went with the female models to the bathroom, during which time she observed their breasts, private parts and “bums”. It was never put to this witness during cross examination that it was beyond the control of the accused, that this witness was taken to the bathroom, by the models. As such, it is clear in terms of Section 19(a) of the Criminal Law Amendment Act these girls were presented in an explicit manner to this witness and further that their genital organs were unduly displayed to Michaela. (3) The accused could have prevented such exposure. (4) The report of the assessor was handed in by consent between the parties as Exhibit [‘BB’]. This witness also gave her evidence in a simple and clear manner and cannot be unduly criticized. I accordingly accept the evidence of this witness. 29

29 The court concluded that the accused did not put to the witness that he was not in control when and with who she went to the bath or changing room during these shoots. We had to look at this, make numerous calls, and search the Internet on when a statement should be made to a witness in court. We spoke to attorney’s and advocates from South Africa and in other countries, and not one said that statement made by the sitting judge was correct or proof that the accused is guilty of exposing a child to child pornography. The closest we got was that the accused might have been negligent in assuring his child was not exposed to any illegal or unlawful behaviour, but in this case, that was not the charge. The accused also did not have to make such a statement as the onus lies on the State to prove that the accused committed a crime beyond a reasonable doubt. The accused does not have to prove he is innocent, and the State must bring proof that the accused is guilty. The court used that failure to convict the accused is ludicrous. Further, it was not possible for the accused to be in control. The accused had his son with him while he was working with models standing in PAGE 19

• 3. It was clear during Keagan’s evidence that I was busy with the shoot and he was behind me while I was working, I did not have Michaela with me, and I did not know when and who got dressed, I have a camera to my face and my attention is with the model while I am shooing. 30

• I don’t get why I had to put this to my child in the first place. The judge asked the state advocate a question if his children walk into the bathroom and they see naked woman of it is unlawful, it was said during the time

I was questioned by the state advocate, …

It was said no.

• 4. There would not have been the slightest possibility that I could have prevented this. I was a single parent, and I could not work and watch two children simultaneously. Everyone knew when my kids were with me, everyone helped me, and if a model had to change clothes, Michaela would most probably go with that person to the bathroom to get dressed. I do not see how

a row to get their turn, which tells us that he was working alone and watching his son while the female models took it upon themselves to entertain and look after the witness. We can further see that the accused did not instruct or ask the witness to look at the models when they get changed. To assume that this is exposing a minor to child pornography is insane and again makes us question the judge’s ability to apply common sense, the basic principle of intent, and the law. 30 This does make sense. The accused is sitting with a child and is focusing on the shoot. Photography is like art, and you need to focus on the subject and constantly engage and direct the models to make sure the end product is good. Your focus is what is in front of you. There is no logic to assume that the accused had the intention to willingly or unlawfully get the witness exposed to models who changed, especially if he was not even aware who got dressed when they got dressed. The court cannot make such a claim, and this is also not enough evidence that a crime was committed with intent as the intention was to get the photos done nothing more, nothing less. PAGE 20 this could be unlawful. On South African beaches, people swim naked with kids all around them, and they go to the bathrooms where people get dressed. Does this mean all those who allow their kids on a beach now will have to go to prison?

SECTION 19 (A) OF THE CRIMINAL LAW AMENDMENT ACT 32 OF 2007, WHICH READS AS FOLLOWS:

Exposure or display or causing exposure or display of child pornography or pornography to children: In terms of the definition of pornography in Section 1 of the aforementioned act – ‘pornography’ means any image, however created, or any description or presentation of a person, real or simulated, who is 18 years or older, of an explicit or sexual nature that is intended to stimulate erotic feelings, including any such image or description of such person-31

(a) engaged in an act that constitutes a sexual offence; 32

(b) engaged in an act of sexual penetration; 33

(c) engaged in an act of sexual violation; 34

(d) engaged in an act of self-masturbation; 35

(e) displaying the genital organs or such person in a state of arousal or stimulation unduly displaying the genital organs or anus of such person; 36

(f) displaying any form of stimulation of a

31 We will now look at the law the State said the accuse broke willingly and unlawfully. 32 State did not prove this - So NO! 33 State did not prove this - So NO! 34 State did not prove this - So NO! 35 State did not prove this - So NO! 36 State did not prove this - So NO!

(g) engaged in sexually suggestive or lewd acts; 38

(h) engaged in or as the subject of sadistic or masochistic acts of a sexual nature; 39

(i) engaged in any conduct or activity characteristically associated with sexual intercourse; or 40

(j) showing or describing the body, or parts of the body, of that person in a manner or in circumstances which, within the context, violate or offend the sexual integrity or dignity of that person or any other person or is capable of being used for the purposes of violating or offending the sexual integrity or dignity of that person or any other person. 41

Pornography, representation of sexual behaviour in books, pictures, statues, motion pictures, and other media that is intended to cause sexual excitement. 42

The state did not prove beyond reasonable doubt that I exposed Michaela to Child/ Pornography, there was nothing unlawful about my work, and there was only the intent to work and make an income while Michaela and Keagan were with me and where other people helped me out by looking after them.

PALAVER CONCLUSION ON FINDINGS

We have to admit that this was nothing more than a fishing expedition. The accused did not expose the wittiness to photography let alone child pornography.

37 State did not prove this - So NO! 38 State did not prove this - So NO! 39 State did not prove this - So NO! 40 State did not prove this - So NO! 41 State did not prove this - So NO! 42 State did not prove this - So NO! As independent case investigator we look at the law and how it was applied. We took the evidence and test it as demonstrated above. The biggest part of these two charges was that the father and accused according to the State was that the accused must have arranged a shoot (PLOT), and get models which he will get to undress either in front of the children, other models and potentially their parents, or allow one child willingly by his instruction to go to the change room to specifically go look at the models vagina’s? (Unlawful Intent). This was not the case and there was not any evidence to prove that either. This was a normal day for the accuse and his children. There was nothing illegal about the shoot.

The State did not have a case against the accused, they did not prove anything butt that the State wanted the court to believe that the accused has a problem and that when ever the State will present after the children will distract the court, the media and public from the facts. The accused just by being accused for violating his small kids to “Child Pornography” crucified him and made the path to a guilty conviction easy for the State. Looking at our other findings it did. The images below according to the court is clad explicitly and seen as child pornography

Documents (Click on Link to Open) 1. Judgment 2. Keagan’s Teddy Bear Clinic Report 3. Michael’s Teddy Bear Clinic Report 4. Transcript Sentencing 5. Head of Argument - Defence