DURBAN 14-01-2013 Marthinus van den Berg how was arrested for two years for rape that he did not do with his wife to be Dorinda Klue. Picture: S'bonelo Ngcobo

Durban - A Durban man who was given 60 years in prison for raping two siblings, one of whom was six months old at the time, has been set free after an appeal judge found that his guilt had not been established beyond a reasonable doubt.

Pietermaritzburg High Court Judge Piet Koen, acquitting Martinus Hermanus van den Berg, 54, found that the magistrate who convicted the father of two had made a “number of material misdirections in her judgment”.

Among them was that the State did not call the doctor who had examined the children to testify, and that the magistrate had relied too heavily on medical evidence that had not been proven.

The high court decision has angered the family of his accusers, who on Monday labelled the justice system a failure.

In an interview with the Daily News on Monday night, Van den Berg said justice had prevailed.

“These were trumped up charges from the beginning. When I was convicted I felt very hard done by the justice system because everything was based on hearsay. There was no evidence against me at all,” he said.

In 2008, Van den Berg, of Hillary, and a 14-year-old boy, were accused of raping and molesting two siblings, one aged seven years and the other six months at the time, and forcing their brother, who was 14, to watch.

The state withdrew all charges against the young co-accused based on evidence that he was compelled by Van den Berg.

Van den Berg, a former real estate agent, was sentenced in November 2010 to 35 years and life (25 years) imprisonment in the Durban Regional Court for rape, sexual assault and exposing a child to other children being raped.

The judgment was hailed at the time as precedent setting.

In arguments for sentencing, both parents testified that, not only would their daughters need constant medical treatment, but all three children had suffered severe emotional damage.

They said their baby girl still had nightmares and their son had become aggressive. According to the mother’s evidence, her son had said that when he grew up, he would kill the accused.

Soon after Van den Berg was sentenced, the mother said she had forgiven him, but would visit him in jail every year just to make sure he was still in prison, paying for the trauma he had inflicted on her children.

In the sentencing, Durban magistrate, Delia Turner, had said: “Fact almost dwarfed fiction; it was so despicable and obscene. It was a complete betrayal of trust.”

Turner described the crime as “sick”, said the man showed no remorse and it was in the best interests of justice that he be locked up for the rest of his life.

Van den Berg spent three months in Westville Prison and 22 months in solitary confinement at Kokstad’s C-Max prison before his appeal went before Judge Koen on November 29.

Van den Berg described his two years in prison as “pure hell”.

“Solitary confinement is a curse. You don’t see anybody, you don’t speak to anybody and you get your food through a hatch. It is terrible.”

During his incarceration, Van den Berg said he suffered a heart attack and two strokes. He also lost 37kg.

“I went from a size 40 to a size 32. It was all because of stress. On the outside both my boys tried to commit suicide. It was bad for all of us,” he said. He said that the day he was told he was being freed, he just “cried and cried”.

Van den Berg said he had not yet brought himself to forgive his accusers.

“I was trying to help them, but I got stabbed in the back. Maybe one day I will (forgive them) but I will never forget,” he said.

The mother of the two minor children said she was angry that Van den berg had been freed.

“We went through hell for those two years during the court case and now it seems it is all for nothing. We feel let down by the justice system,” she said. - Daily News