S v Mbokhani

• Judge: Bertelsmann J
• Judgment Date: 16 November 2007
• Citation: 2009 (1) SACR 533 (T)
• Docket Number: CC 94/2007
• Hearing Date: 16 November 2007
• Court: Transvaal Provincial Division

Bertelsmann J:

[1] This judgment is a record of justice failed.

B [2] In 2004, Z, an eight-year-old girl was raped at or near her home in a village in Mpumalanga.

[3] The rape occurred on a Saturday.

[4] According to the principal of her school she presented with unusual C behaviour during January or the beginning of February of the year 2004. She was disturbed, rebellious and uncomfortable, clearly distressed by a vaginal infection.

[5] Her teacher took Z to the principal, who questioned the child and was told that she had been raped.

D [6] The principal did not attempt to establish the identity of the rapist. She did not inform the child's family as she knew that Z's mother had left the family home some time before the incident, abandoning her children to her working husband and his alcoholic mother.

[7] Instead, the principal requested a social worker to interview the E child. This social worker was not in the Government's service but was employed by a manufacturing company in the vicinity of the village.

[8] The social worker testified that she spoke to the victim during February 2004. The child confirmed that she had been raped. The social F worker did not testify that she had been informed of the identity of the rapist; if so, she did not disclose it during her testimony in the regional court.

[9] She conveyed the victim's account to the principal.

[10] Neither of the two women, nor anybody else, did anything at all for G the next seven months. Only in September 2004 did the social worker inform the police of what had happened.

[11] During the entire period after the rape, Z was left to fend on her own - she did not receive counselling, she was not comforted, she was H not removed from the surroundings in which she had been violated.

[12] Once the police were informed, they proceeded to the family's home. Statements were taken from the complainant, her father, her two brothers and the victim was taken to the district surgeon to be examined.

[13] The child, her father and her brothers told the police that the I incident happened in June 2003.

[14] They implicated the accused, a neighbour.

[15] Nobody explained why the police had not been called immediately after the event - according to the complainant and her elder brother, the latter had been informed of the alleged rape within minutes after it J happened.

Bertelsmann J

[16] Neither he nor Z informed the father, who was allegedly having an A afternoon nap when his child was assaulted.

[17] He seemingly noticed nothing untoward, although both children testified that the victim was limping from pain for hours after the attack.

[18] The elder brother left the homestead on the afternoon of the B incident without having informed his father or any other person in authority of what he had been told. He went to his boarding school in another village even though his next school day was the following Monday. He did nothing at all to help his sister, a fact that apparently never aroused any suspicion on the part of the police or the prosecutors.

[19] The accused was arrested despite his protestations of innocence C once the victim and her family members had made their statements.

[20] The child was examined by the district surgeon shortly after the statements had been taken. The doctor confirmed that the child had been raped and added in her report that, according to the state of the injuries the victim suffered in the attack, the assault appeared to have D taken place some six months earlier, ie about March 2004.

[21] In her oral evidence, which was presented in the regional court in Ermelo much later, she added that a period of six to eight or nine months could have expired between the date of the rape and her examination.

[22] By no stretch of the imagination was either her statement or her E evidence under oath compatible with the suggestion that the rape could have occurred in June 2003.

[23] The investigating officer did not notice this discrepancy between the allegations of the victim and her family on the one hand, and the medical evidence on the other. F

[24] The accused appeared in the regional court on a charge of rape for the first time on 3 December 2004. The record does not show how often he appeared in the district court prior to that date.

[25] By December 2004, the docket had been handed to at least two G prosecutors and the charge-sheet had been seen by at least two magistrates. All role players were aware of the fact that the victim was a child of tender years. The prosecutors who handled...