Pretoria - A judge has commended a prosecutor who, in spite of the fact that the mother of a mentally impaired 18-year-old withdrew rape charges against the alleged culprit, proceeded with the prosecution in the interest of justice.
But as it was claimed that the mentally challenged complainant gave consent to have sex with the then accused, he was acquitted by a magistrate after facing a rape trial.
The man, who cannot be named so as not to identify the complainant, turned to the Gauteng High Court, Pretoria, to claim damages against the Director of Public Prosecutions for malicious prosecution.
The plaintiff said although the mother of the complainant withdrew the charges, the Deputy Director of Public Prosecutions in Thohoyandou, Absah Madzutha, “maliciously” proceeded with the prosecution.
Judge Norman Davis referred to the complainant as “a learner” in his judgment due to the acquittal of the alleged rapist.
In turning down his claim, Judge Davis found that the plaintiff was not maliciously prosecuted. The judge, in fact, praised Madzutha for pursuing the matter even after the mother had withdrawn the charges.
He, however, frowned upon the criminal proceedings.
“I need not make a finding on whether the acquittal was correct or not, but prima facie (on the face of it), the learner as a victim was not treated fairly,” the judge said.
He criticised the inquiry which was done before the start of the rape trial as to whether she was able to understand the oath or whether she was competent to testify, either on her own or through an intermediary during the trial.
Judge David added that no consideration was given to whether the learner was “due to her mental retardation, incapable in law of appreciating the nature of the sexual act”.
Thus, even if she did give consent to sex, whether she was mentally able to do so or not, it did not count.
While her family, experts and teacher confirmed that she was mentally disabled, the man accused of her rape insisted that she was “100%”.
“The plaintiff’s attempted exculpatory evidence that the learner is “100%” is so at odds with the totality of the remainder of the evidence that it should have been rejected (during the rape trial),” the judge said.
The rape charge against the plaintiff followed claims that on the night of October 17, 2009, the plaintiff “snuck” into the homestead of a family in a neighbouring village and had sex with the learner of a special needs school.
The learner told her mother and uncle, and the plaintiff was arrested.
The plaintiff, who has two wives, testified that he met the learner prior to the incident, and it was love at first sight.
He alleged he was told she was born in 1989, and although he was not good in maths, he had calculated in his mind that she was older than 18.
So, he said, when her family left for church one night, he went to her and they had consensual sex.
Judge Davis commented that “a curious fact” in this case was that the learner’s mother wanted to withdraw the charge against the plaintiff, as she said the accused had apologised to her family for what he had done.
Madzutha, who looked at the case docket, however, felt that there was a case to answer to, especially given the complainant’s mental status.
He told the mother that an apology could never be an excuse for rape.
He told the mother that she was not the complainant, but even if the learner, as the complainant, were to give a withdrawal affidavit, the Office of the National Director of Public Prosecutions represented the responsible interests of justice and had a duty to see that was done for victims.
Even though the plaintiff was acquitted of rape, the judge commended Madzutha for not allowing the charges to be dropped.