He was jailed for 15 years, but this week a man accused of statutory rape, possession of child pornography and grooming children became a free man when two KwaZulu-Natal judges ruled that the state had not proved any of the charges against him.
Nicolaas van Helsdingen was 35 when he was convicted in a Newcastle, KZN court in July 2018.
This week, judges Piet Koen and Philip Nkosi upheld his appeal against all charges, essentially ruling that a search warrant used to raid his home was defective, that the charge sheet did not specify individual images of child pornography for which he was charged, and that he may not have known that the teenage girl he had “consensual sex” with was in fact 14.
However, they directed the judgment be brought to the attention of the local head of social welfare, in particular the evidence of the teenager who claimed that her temporary foster mother had encouraged her to have sex with Van Helsdingen in her garage.
“If the allegations are true, then she should not be entrusted with the care of any children,” they said.
Van Helsdingen, in his plea of not guilty before the trial court, admitted to having sex with the teenager but said he was not aware that she was under 16.
In her evidence the teenager admitted that she had posted on Facebook that she was “addicted to sex” and liked to get people into trouble. She told Van Helsdingen that she was once engaged, and had a baby who was now at the age “who could walk”.
Under cross-examination she agreed that she looked a lot older than her age and that people could easily believe that she was 18 or 19.
The judges said the trial magistrate had not taken into account that she was a self-confessed liar, and that on her own version she stated on Facebook that she likes to use men for sex, have them charged, while pleading innocence.
They said she had deceived Van Helsdingen and while he should have been on guard, because she resided ordinarily in a children’s home, he must be given the benefit of the doubt.
Regarding the charges of “grooming”, only one of two children allegedly involved had testified to the effect that it was the teenager who had shown them a video of a boy and girl “getting busy” and “then going to bed”. There was no evidence of “encouraging or persuading a child to perform a sexual act”, as per the charge.
Regarding the possession of 547 images of child pornography, the judges said the warrant used to obtain the images was defective, in that it did not contain details of the alleged offences, nor Van Helsdingen’s name “so the state was not entitled to rely on them”.
Further, the individual charges did not specify the image forming the subject of each count, as required by law, and it appeared they did not form part of the record.