Judge
Yvonne Mbatha said the search warrant used by police when they seized
his computers was invalid. “Therefore, the evidence obtained [through
it] rendered the trial unfair and should have been excluded.”
In 2017, Nelspruit regional court magistrate Vanessa Joubert
convicted Malherbe on three of the seven charges he faced and gave him
suspended sentences of three months’ imprisonment on each of them.
Joubert also declared him unsuitable to work with children and
ordered that his name be added to the National Child Protection Register
of sex offenders.
Malherbe, 54, lost a high court appeal against his conviction and
sentence, but Mbatha said the magistrate who issued the search warrant
failed to ensure that the police officer who requested it take an oath.
“A search warrant issued on the basis of an unattested statement is invalid,” she said.
Malherbe’s arrest on August 15 2013 made global headlines when it was
reported to be part of Project Spade, an international investigation
into child pornography.
Reporting his sentencing,
The Lowvelder
said Joubert explained her decision not to jail him by saying: “He has
26 years’ experience in teaching and is currently living off his life
savings.
“I do not see him as a high risk and he has also experienced a public shaming in the media and a fall from grace.”
Announcing Malherbe’s firing a week after his arrest, the Penryn
Preparatory board described him as a man “characterised by exceptional
professionalism”, who enjoyed the respect of his teaching colleagues,
parents and pupils.
Malherbe previously taught at Selborne and Graeme colleges in East
London and Makhanda, as well as in Cape Town, and at one time coached
water polo at national level.