Man with 'filthy penis' walks
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By Zelda Venter
High Court Reporter
A magistrate's inappropriate questioning of a rapist and comments made during his trial, including a reference to his "filthy penis", has led to the rapist walking away a free man.
Kenneth Makau had been sentenced earlier in the Sebokeng Magistrate's Court to 16 years for raping a teenager and to a further four years for robbery.
But he took the matter on review to the Pretoria High Court on the grounds of comments made by magistrate M K Makhwentla during his trial. He said the magistrate had been biased against him.
While the high court could not find the claims of bias to be true, two judges found that the magistrate's conduct was unbecoming of a judicial officer.
The victim at the time testified that she had been grabbed from behind by Makau and raped at knifepoint.
But Makau claimed he had bumped into her in the street and she asked him for a place to sleep. They had various forms of consensual sex, he said.
The various forms of sex described in court seemed to be too much for the magistrate.
When the oral sex was mentioned, he exclaimed "Sucked, sucked! Using your tongue?"
He also questioned how the accused could have done the things he had admitted to, albeit by "consent", with "that dirty penis".
The magistrate seemed even more upset when the accused testified how he had inserted his penis in various parts of the victim, before engaging in oral sex.
He asked the accused: "Don't you think that was a cruel thing to do or was it pleasure? Can you say you are treating a lady lovingly or are you being cruel to the lady?"
The magistrate also asked him whether he had been "sex hungry" on the day in question.
Regarding Makau's claim that the victim was the one who wanted to have sex with him, the magistrate said: "So this lady was just manna from heaven as you were walking in the street.
"Just a beautiful lady appeared and said 'I want to go and sleep at your place tonight'.
Acting Judge T Phalane said this was all too much to handle for the magistrate.
"I have no doubt that ordinary members of the public would be uneasy with the (rapist's) admitted conduct."
But the presiding magistrate, Judge Phalane said, was not an ordinary member of the public.
"Imposition of personal morals and values on witnesses and accused has no place in the office of a judicial officer," he said.
While he found the judgment on the merits to be well motivated, he found it to be not in accordance with justice because of the magistrate's questions.
Judge Moses Mavundla, who agreed with this finding, added that even an accused had the right to be treated with dignity. "There is no room for despairing language... Decorum must flow from the bench."
Referring to "that filthy penis," the judge said, "this type of language needs to be censored in the strongest terms".
A presiding officer was not expected to sit as a statue, but as an umpire. Judge Mavundla said this conduct tainted a well-reasoned judgment and led to the freeing of an otherwise guilty person.