S v Mbokhani

• Jurisdiction: South Africa

S v Mbokhani
2009 (1) SACR 533 (T)

2009 (1) SACR p533

Citation	2009 (1) SACR 533 (T)
Case No	CC 94/2007
Court	Transvaal Provincial Division
Judge	Bertelsmann J
Heard	November 16, 2007
Judgment	November 16, 2007

Flynote : Sleutelwoorde

Trial — Delay in prosecution of — Trial on charge of rape of child — Paramountcy B of interests of child requiring trial to be finalised as soon as humanly possible — Children's memories compromised by passage of time — Child victims of rape may be exposed to undue influences and threats where repeated postponements occur — Child also traumatised thereby — Trials in which children testify as victims or eyewitnesses to be given priority at all C times — Failure to do so infringing s 28(2) of Constitution, 1996 — Furthermore, children who are at risk should be provided with care and protection of social services.

Headnote : Kopnota

If a child victim of a sexual assault is to testify in the alleged rapist's subsequent trial, her or his interests can only be accorded their rightful paramountcy if D all parties involved co-operate to ensure that the trial is finalised as soon as humanly possible. Children's memories are notoriously compromised by the passage of time; victims in the complainant's position may be exposed to undue influences and threats, and the trauma of repeated postponements may compromise the child's subsequent testimony to the extent that the rapist must go free because the evidence provided by the child is no longer E of the standard that would justify a conviction. Trials in which children are to testify either as victims or as eyewitnesses must be given priority in all courts and at all times - not to do so is an infringement of s 28(2) of the Constitution, 1996. Children who are at risk, as was the complainant, should be provided with the care and protection of appropriate social services. Enquiries ought to be conducted immediately the rape is discovered F as to whether the child is in need of care. (Paragraphs [54] and [55] at 539f-539i.)

Annotations:

Cases cited

Reported cases

Brandt v S [2005] 2 All SA 1 (SCA): referred to G

Centre for Child Law and Another v Minister of Home Affairs and Others 2005 (6) SA 50 (T): applied

Director of Public Prosecutions, Kwazulu-Natal v P 2006 (1) SACR 243 (SCA) (2006 (3) SA 515; [2006] 1 All SA 446): referred to

M v The State; Centre for Child Law as Amicus Curiae 2007 (2) SACR 539 (CC) H (2008 (3) SA 232; 2007 (12) BCLR 1312): referred to

Prinsloo and Another v Bramley Children's Home and Others 2005 (2) SACR 2 (T): referred to

S v B 2006 (1) SACR 311 (SCA) ([2005] 2 All SA 1): referred to

S v Kwalase 2000 (2) SACR 135 (C): referred to

S v Manqaba 2005 (2) SACR 489 (W): considered I

S v Mojaki 2006 (2) SACR 590 (T): applied

S v Nkosi 2002 (1) SA 494 (W): referred to.

Legislation cited

Statutes

The Constitution of the Republic of South Africa, 1996, s 28(2): see Juta's Statutes of South Africa 2007/8 vol 5 at 1-25. J

2009 (1) SACR p534

Case Information

A Criminal trial on a charge of rape. The facts appear from the reasons for judgment.

Judgment

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.

2009 (1) SACR p535

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...