Pretoria - A rape victim, 11, was dismally failed by the authorities and her own parents. It was clear she had been raped several times in the past, but they did not bother to console or counsel her.
To make matters worse, the magistrate presiding over the rape trial told the bewildered child in the witness box that if she did not tell the truth, he was going to punish her.
The terrified girl testified incoherently – even forgetting her date of birth – causing the magistrate to say in his judgment that her mind was unstable. When the child hesitated to answer a question posed by the Springs magistrate, he told her “not to die, but to talk”.
“This shows the learned regional magistrate lacked the necessary sensitivity for the child’s complaint… He was brash, abrasive and overbearing… to say the court was going to punish the child, was intimidating,” North Gauteng High Court Judge Tatu Makgoka said.
The judge was hearing an appeal by the man said to have raped the girl. The man, who cannot be identified to protect the child’s identity, was sentenced to 20 years in jail for raping her. He turned to the high court to appeal against his conviction. The judge overturned his rape conviction, as the child claimed she was anally raped on April 14, 2011.
She was taken to a doctor the following day. The doctor could not find fresh injuries indicating she had been raped the day before, but he did report it was clear from her tears that she had been anally penetrated at least five times in the past.
Judge Makgoka made it clear that while he overturned the conviction, his finding did not exonerate the man of possibly having been involved in raping the child before.
The judge asked the director of public prosecutions to investigate the possibility that the child was raped by the man or by other people – and to bring the culprit to book.
The girl testified she was playing in the street, when the man grabbed her, took her to his home and raped her. Her sister found the half-naked, crying child in her home. The child did not go home to tell her parents what had happened, as they were always “cursing and fighting”.
She took a blanket from a washing line at her uncle’s home, wrapped herself in it and went to sleep outside his shack. He found the sleeping child, but left her and told her mother the next morning to fetch her. The mother did not bother to find out where her child had been and half-heartedly fetched the child.
The alleged rapist denied any wrongdoing and said the last time he had seen the child was when he sent her to a shop. The judge said the evidence of the “rapist” was far from satisfactory, but this specific rape could not be pinpointed on him.
Judge Makgoka labelled the magistrate’s rude and sarcastic conduct as “most disturbing” and said witnesses needed to be treated with respect. “There is no room for impatience, abrasiveness or sarcasm… ”
The child was clearly neglected and in need of care, the judge said, ordering Social Services to look into her situation. His judgment will be forwarded to the Judicial Service Commission to look into the magistrate’s conduct.