KZN High Court overturns findings for man earlier convicted of rape

In July 2018, the Newcastle Regional Court convicted Nicolaas van Helsdingen – then 35 – of the statutory rape of a local teenage girl, sexual grooming and more than 350 child pornography-related charges.

But the KwaZulu-Natal High Court this week overturned the findings against him.

In terms of the statutory rape charge, Judge Piet Koen – who penned the appellate court’s ruling with Judge Philip Nkosi concurring – ultimately found the state had not proven beyond a reasonable doubt Van Helsdingen knew the girl was just 14-years-old at the time they had sex.

In both the regional court and the high court, Van Helsdingen admitted they had had sex twice – at his home and at the home of a woman with whom the girl, who was living in a children’s home at the time, used to stay on the weekends. However, he claimed not to have known she was underage.

Koen in his judgment pointed to the girl’s own evidence that she had posted on Facebook “she liked to use men for sex and money and to have them charged with molesting, while she pleaded innocence”. She also admitted on the stand that she looked a lot older than other girls her age and that at the time she she and Van Helsdingen had sex, she could have passed for 18- or 19-years old.

“The conclusion of the learned magistrate that [she] was honest, is open to serious doubt … She is a self-confessed liar on many issues – that is apparent from the record,” Koen said.

“The overall impression one is left with is that [she] was a physically well-developed young woman with a physical appearance and a professed life experience well beyond her true age, and that she conducted herself as would a young woman older than 16 … [Van Helsdingen] should have been on his guard, because [she] resided at a children’s home and can be criticised in that respect.

“His failure to make further enquiries does not, however, mean that he could not have been deceived as to her age and reasonably believed her to be older”.

Meanwhile, of the sexual grooming charges – in terms of which Van Helsdingen was accused of having shown two other children photos of “explicit sexual intercourse” – only one complainant actually gave evidence in court and Koen found she never testified to having been shown material that would constitute the charges in question.

Finally, when it came to the child pornography-related charges, Koen said these too had to fall away as the state had not linked each count to a specific image.

He also found the evidence on which the state had relied to prove these charges was inadmissible as the search warrant police had used to secure it, did not include Van Heldsingen’s name or the offence he was accused of.

Van Heldsingen was acquitted of all charges.

The girl’s evidence in court – and specifically a claim that her temporary foster mother had encouraged her to have sex with Helsdingen – was however referred to the Department of Social Development with Koen saying,“If the allegations are true, then she should not be entrusted with the care of any children”.

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