WARNING: This article contains graphic sexual violence/rape content.
An uncle who spent almost four years in police custody after being accused of raping his nine-year-old niece, only to be acquitted, has had his claim for damages for unlawful detention and malicious prosecution dismissed by the South Gauteng High Court in Johannesburg.
The Vosloorus uncle, who is not being named to protect the identity of the victim, had handed himself over to Katlehong police in February 2016 after he caught wind that members of the community were plotting to attack him after it was alleged he had raped his nine-year-old niece.
During the criminal trial, a statement by the child recalled how the uncle lured her to the bedroom at night, undressed her, and penetrated her with his penis, causing her to cry in pain.
"I felt pain on my vagina and cried. Then (the uncle) stopped. He then told me not to tell anyone what had happened," said the victim.
It was alleged that he had raped the child on at least two occasions between August 2015 and January 2016.
The nine-year-old niece had informed her 14-year-old sister, who alerted their mother (who lived in Rustenburg away from the children), but she did nothing, said Judge LR Adams, who presided over the matter after the uncle launched a damages claim for unlawful detention and a malicious prosecution claim against Police Minister Bheki Cele and the National Prosecuting Authority.
The 14-year-old also submitted a statement saying the uncle had called her to the bedroom, but she refused.
“The owner of the house... came into my room and asked me to come into his room ... but I refused and he went back and never come back again,” said the older sister.
She said the advance on her had been made in 2014, when she was 13. She was never raped, she said.
Judge Adams explained in his judgment, that a neighbour who had just returned to Vosloorus from her December holidays in or about January 2016 found four children, including the victim, outside with no adult supervision.
The court heard that the four children, including the victim, were living in Vosloorus with their aunt and were sleeping in makeshift beds in the lounge.
"The neighbour, who deposed to an affidavit on 24 February 2016, which formed the basis of the arrest and the subsequent detention of the plaintiff, enquired from the children as to why they were all by themselves and why they were not at school.
"The response from the eldest sister was to the effect that the complainant had been raped by the plaintiff," Judge Adams wrote in his judgment.
The neighbour took the victim to a medical doctor, who confirmed she had been raped, and a case of rape was opened against the uncle.
Judge Adams said the uncle heard he was being accused of rape and did not return home, instead, he spent the night in Rondebult at his sister's house and handed himself to the police the next day, where he was arrested and charged with raping the 9-year-old girl.
The uncle was refused bail and remained in police custody until August 2, 2019, where he was acquitted after a period of about three years and seven months.
Judge Adams dismissed the uncle’s claim for damages on the basis of unlawful detention and malicious prosecution, explaining that the police and the prosecution had a basis for pursuing the case.
Adams said the rape case against the uncle had been dropped due to discrepancies in the evidence, which included that the nine-year-old victim had contradicted herself by alleging she had been raped on two occasions, while on another occasion she stated that the rape occurred only once.
"The mere fact that, in the end, the plaintiff was discharged in terms of Section 174 of the CPA does not detract from the reasonableness of the suspicion that the crime had in fact been committed by the plaintiff.
"If anything, there are a myriad of reasons why the criminal case took a turn for the worse as it did.
"Objectively viewed, it is difficult to see on what basis the arresting officers can be said not to have had a reasonable suspicion that the crime had been committed.
"Furthermore, the plaintiff was not unlawfully detained. His bail application was lawfully refused by a court of law," said Judge Adams.
Judge Adams said upon the arrest of the uncle, police had an affidavit from the neighbour, a medical report from a doctor, and that the nine-year-old had reported the incident to at least three people: her 14-year-old sister, her mother, and the neighbour.
"It bears emphasising that by the time the plaintiff arrived at the Katlehong Police Station on Thursday, February 25, 2016, to hand himself over to the police, they had at their disposal information, in the form of an affidavit by the neighbour, as well as reports from the complainant and her sister of the rape by the plaintiff, which persuasively implicated the plaintiff in this hideous crime.
“The rhetorical question to be asked is whether the SAPS was to ignore this information and to simply release the plaintiff without arresting him. I think not.”
"All of this would no doubt have aroused the police’s suspicion that the plaintiff had committed the crime of rape of a minor child," said Judge Adams.
Adams held that there was no evidence to support the conclusion that "the police acted unreasonably and without reasonably suspecting that he had committed the offence of rape".
"The arresting officers were, in my judgment, not subjectively motivated by any irrelevant personal considerations of sympathy or vengeance.
"They just had no reason to be so motivated. Their suspicion that the plaintiff had committed the said crime was based on reasonable grounds, notably information received from the complainant and the other witnesses," said Judge Adams.
Judge Adams dismissed the uncle's claim and ordered that he pay the legal costs of the action to the police and the NPA.