Pretoria - A Mpumulanga man suspected of raping a mentally handicapped 13-year-old family member during a game of hide-and-seek lost his R1.5 million damages claim against the minister of police after a North Gauteng High Court judge found that at the time of his arrest, there was enough evidence suggesting he was the culprit.
The man, who cannot be identified to protect his victim, was never put on trial for rape as the Director of Public Prosecutions declined to prosecute.
The man claimed his arrest and subsequent incarceration were unlawful in light of him being let off the hook.
The mother of the alleged victim laid a charge of rape against him on the evening of March 22, 2008 after he locked himself and the alleged victim in the bathroom. A white substance, suspected to be semen, was found on the floor.
The policeman who arrested the man said he was called by the girl’s mother and told her mentally handicapped daughter had been raped.
She said her brother-in-law, while engaged in a game with the children, had been found in the bathroom with her daughter after the other children became concerned and started looking for the two.
The woman’s son, who suspected something suspicious was going on, found a “white substance” on the floor, which he thought to be semen.
He told his mother about this and she confronted her brother-in-law, who asked her whether she was willing to take a child’s word above his.
The child was taken to a doctor, who found bruises on her private parts and said that “forceful penetration could not be ruled out”.
The boy told the police that he had knocked on the locked bathroom door and his uncle opened it. He then asked his sister what was happening and she replied “nothing but girl stuff”.
When she was later confronted by her mother, she started crying and said her uncle made her take her underwear off, put her hands on the toilet and bend over.
The child, however, refused to tell the whole story.
The arresting officer testified that when he arrested the man, he knew a charge had been laid against him, but he did not explain what had happened.
Judge Bert Bam said a policeman who suspected that a crime such as rape had occurred may arrest a suspect without a warrant.
The judge said the suspect, apart from telling the policeman that rape never occurred, did not give details. He said the man knew the alleged victim was under 16 and mentally handicapped since they were related.
The policeman considered all these facts and formed reasonable suspicion that the uncle had raped her. The judge said he could not be faulted for coming to that conclusion.
In turning down the man’s claim, Judge Bam said the policeman was entitled to consider all the information, even based on hearsay. He did not need to be convinced that the allegations were true, as the police aimed to bring him before a court, where they would have been tested.
He said the policeman could not have known that the prosecution was going to decline to prosecute.