Pretoria - A woman who claimed she was attacked by a rapist while he was out on parole, may now proceed with her more than R2 million in damages claim against Correctional Services.
She claimed the parole board was negligent by releasing the man before he was ready to face the outside world.
The victim is holding the Minister of Justice and Correctional Services liable for the fact that she was attacked.
Ivan Botha is back behind bars after he attacked her and attempted to assault, rape and rob her.
Botha was a convicted criminal who had committed, among other offences, rape and indecent assault in the past.
He was placed on parole in November 2010 and the attack on her took place while he was on parole. The victim claimed the damages as she felt that correctional services failed to protect her by not keeping Botha behind bars.
It also appeared that Botha had broken some of his parole conditions, yet the department did not revoke his parole and only gave him verbal warnings.
The victim did not have luck with her damages claim before the Gauteng High Court, Pretoria. The presiding judge could not find on the existing evidence that she had proved her case that the department was negligent. The judge granted absolution to the minister, which meant it was the end of the matter.
She, however, turned to the Supreme Court of Appeal, where Acting Judge David Unterhalter overturned the absolution verdict.
The judge found that the department had to further present its case as to exactly why it decided to place Botha on parole.
“There was evidence before the high court that could permit the finding that the discretion of the Parole Board was not lawfully exercised … Mr Botha, once released on parole, was subject to supervision.
“Those responsible for his supervision categorised Mr Botha as ‘high risk’, having been convicted of rape and indecent assault. Yet his violations of his parole conditions resulted in verbal warnings.”
It was argued on behalf of the victim that given Botha’s criminal record and the information that served before the Parole Board, he should not have been released on parole, as this could have endangered the public.
The victim said as she was attacked, the minister, in his official capacity, was liable for the pain and suffering she had to endure.
In April 2012, in Oudtshoorn, Botha attempted to assault, rape and rob her, and he was consequently convicted and sent back to prison.
In its defence, Correctional Services said the information before the Parole Board did not indicate that Botha was likely to commit the crime that he did, and that a warning for his violations of his parole conditions was sufficient.
The high court considered there to be no evidence that demonstrated that the decision to place Botha on parole was tainted or flawed, as the Parole Board has a discretion to decide on parole for prisoners.
Judge Unterhalter, however, said the department should present further evidence as to why it released Botha on parole. In overturning the high court’s verdict, he said it failed to recognise the complexity of the issues.
The victim’s case is that there is a constitutional duty of the minister to protect the public and to protect women from violent crimes. The high court judge will have to hear further evidence before coming to a verdict – either in favour or against the victim.