SCA overturns child pornography judgement

MBOMBELA – The former principal of Penryn Prepatory, Neil Malherbe (54), was arrested in August 2013 after the police found child pornography on his confiscated personal computer.

He was also fired from Penryn Prepatory in 2013, as he was found to be unsuitable to work with children.

Judge Thokozile Mbatha, in her surprise judgment, stated that a search warrant issued, in which an oath was not properly administered on the facts alleged in the statement by a Commissioner of Oaths, is invalid. Therefore the items seized by the police, “lack the status and character of evidence and are inadmissible,” she ruled.

Malherbe’s attorney, Coert Jordaan, confirmed that the judgement against his former client was set aside. “The state did not prove their case beyond a reasonable doubt, but mainly the judgement was overturned because of the unlawful issuing of a warrant,” he said. Jordaan added that the former accused’s name will also need to be removed from the sexual offences register. “I am happy with the verdict; justice and fairness have prevailed at long last.”

The attorney who defended Malherbe during the last stages of the trial, Richard Spoor, explained that he had advised his client not to pursue a damages claim against the state, due to the sensitive nature of sexual offence charges. “With things like this there is no winning. My advice to him was to start over and go on with his life. You would have to prove that the state was malicious and I don’t think they were malicious, but incompetent,” Spoor added.

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It was previously reported in Lowvelder that Malherbe was marked by the police as a suspect in an international child pornography ring upon him purchasing a video from a film company, which was under investigation. Nearly 400 children were rescued and 348 adults arrested in Canada’s largest child pornography bust, called “Project Spade”.

Malherbe stood accused in the Nelspruit Regional Court on seven counts of contravening various sections of the Films and Publication Act (FBA) 65 of 1996. During trial he admitted being in possession of three images which constitute pornography. The trial court initially ruled that the search warrant was lawfully obtained. He was convicted on the basis of the three images in his ownership and sentenced on October 27, 2017.

ALSO READ: Former principal found guilty of child pornography

A three-month prison sentence was handed down in respect of each count, wholly suspended for a period of three years, on condition that he is not convicted of similar offences during this period. The trial court also made an order in terms of s 120(4) of the Children’s Act (CA), that the convicted sex offender is unsuitable to work with children and ordered his name to be entered into the National Child Protection Register.

An appeal to the Gauteng Division of the High Court, sitting as the Mpumalanga Circuit Court, against both the conviction and sentence failed, whereafter special leave was obtained from the SCA to appeal.

Mbatha held that, “the magistrate should have held that the search warrant was issued unlawfully and was invalid. It was the failure of the trial court to declare the warrant invalid, which induced the appellant to make admissions in terms of section 220 of the Criminal Procedure Act (CPA),”she said.

She declared that the admissions were insufficient to justify a conviction. “They were an admission that there were three images, one taken from the movie and the two others downloaded from the internet to the appellant’s laptop.”

According to Mbatha, this was done without reference to the FBA or any reference that that these images displayed scenes amounting to child pornography. Therefore she declared that the appeal should succeed. “The evidence obtained rendered the trial unfair and should have been excluded,” she said.