five(names and identity witheld) of the gang rape boys where acquitted of all charges today at Protea Magistrate Soweto 28.05.2014 Picture:Dumisani Dube

Johannesburg - The boys who were thought to have gang-raped a mentally unstable teenager when a video of them having sex surfaced and went viral are now free.

The boys were positively identified as the people having sex in the bushes with the girl.

However, it was later found that the boys never raped the girl as there was no evidence to that effect.

The boys instead faced child pornography charges.

When she was interviewed, the girl never alleged that what had happened was rape.

While she was 17 at the time, her mental capacity was found to have been of a 14-year-old.

On Wednesday, all charges against the boys were withdrawn at the Protea Magistrate’s Court, much to the delight of their lawyer.

Advocate William Karam, who was instructed by Legal Aid SA to work on the case, said his clients never raped the girl.

“After seeing the evidence, our take was that there was never rape. What the boys did was wrong but it was not a rape per se. They were playing soccer on a Sunday afternoon when she approached the accused for sex at a price, at R2 a shot. Basically she solicited them.

“And as they live in different areas, they did not know her and did not know she is mentally unstable,” he said.

Seven boys were arrested, and many were underage. Two were later acquitted; a 14-year-old was found not to have any criminal capacity; and another one was found not to have slept with the girl.

Prosecutor Sharon Masedi said the charges were withdrawn because the boys had completed a diversion programme.

“We interviewed witnesses, evaluated the evidence, took into account the personal circumstances of the accused and decided that it would be in the interest of justice for them to attend the diversion programmes,” she said outside court, adding that the girl’s family had been informed.

Karam said the evidence was that the girl offered the boys sex at a price. One of the boys did not have the R2 and the girl refused to sleep with him. He therefore filmed the sex.

His friend asked for his phone to download music and came across the clip the boy had filmed.

“He then downloaded it onto his phone, and from there it went viral. It was not the accused who circulated it,” he said.

After both the State and the defence looked at the video, they both agreed on the diversion programme.

“The accused attended the programme in order to educate and enlighten themselves as to how to conduct themselves with women and to realise that what they did was morally, spiritually and socially wrong,” Karam said.

The girl is now at a place of safety and is said to be doing well there.

How diversion option works

Diversion is a pre-trial service for both adults and children. An offender given a diversion order will not be convicted and will not have a criminal record. The goal of diversion is to divert people away from the criminal justice system, where appropriate, and avoid a trial and a criminal record.

Depending on the circumstances of the offence, anyone can be considered for a diversion. The decision normally rests with the public prosecutor, and sometimes the magistrate or judge can order a diversion. This option is used for less serious offences. However, diversion has also been ordered for more serious cases.

Most diversion offenders are aged 15-18 and 30-39.

The most common offences for diversion are theft, attempted theft, shoplifting, assault with the intent to commit grievous bodily harm, common assault and possession of narcotics or alcohol.

A typical diversion order can consist of community service (20 to 300 hours) and/or individual counselling. – Source:

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