2 ______________________________________________________________________ ORDER ______________________________________________________________________ On appeal from: KwaZulu–Natal, Pietermaritzburg (Nicholson J and Vahed AJ sitting as court of appeal): 1. The appeal is upheld. 2. The conviction and sentence are set aside. ______________________________________________________________________ JUDGMENT ______________________________________________________________________ TSHIQI JA (PONNAN JJA AND MBHA AJA CONCURRING): [1] The appellant was charged with indecent assault in the Verulam Regional Court, KwaZulu-Natal on 18 February 2009. It was alleged that ‘FROM 2000-2004 at or near PHOENIX in the district of Inanda, Regional Division of KZN, [he] did unlawfully and intentionally commit an assault of an indecent character upon P1 (6 YEARS) by INSERTING HIS PENIS INTO HIS ANUS’. He was convicted and sentenced to a term of ten years’ imprisonment. His appeal to the KwaZulu-Natal High Court, Pietermaritzburg on both conviction and sentence was dismissed. His appeal is now before us with the leave of this court. [2] The complainant was 14 years old at the time of the trial. The indecent assault was alleged to have been committed approximately eight years ago. His date of birth was confirmed by his mother and through his birth certificate which showed that he was born on 18 July 1994. He testified through an intermediary and both the complainant 1 To protect the identity of the minor child I shall refer to him as P.

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