A Gauteng mother, whose mentally disabled daughter endured eight years as her stepfather’s sex slave, threw “R670 000 down the drain” in forcing the National Prosecuting Authority (NPA) to get justice for her child’s harrowing ordeal.
In 2016, Theresa Oelofse waged a two-year-long battle, which cost her more than R670 000 in legal and medical fees, against the NPA to force it to prosecute the case after the authority had declined to do so, saying that Dominique Monaghan, the rape and sexual assault victim, was an unreliable witness because of her disability.
Oelofse and Dominique’s biological father, Glen Monaghan, gave the Mail & Guardian permission to publish their and their daughter’s name.
“Dominique and I are victors, not victims,” Oelofse asserted this week.
Her struggles have highlighted the apparent lack of recourse, outside NPA head Shamila Batohi’s office, crime victims have should prosecutors fail to enrol cases despite damning evidence against alleged perpetrators.
Law expert Dan Mafora said the constitutional framework did not allow for the establishment of an independent ombud office for the NPA, as there is for other state and judicial bodies, because the Constitution empowers the NPA to “determine prosecution policy”.
But Mafora, who is a researcher at the civil organisation Council for the Advancement of the South African Constitution, said “attention should be paid to the possibility of amending [the Constitution] to better deal with complaints” against alleged incompetent prosecutors.
Mafora was reacting to the M&G’s report last week that Judge Frans Kgomo, the ombudsman for the Directorate for Priority Crime Investigation (or the Hawks), found that the actions of NPA prosecutors Adina van Deventer and Alicia Roos were “deeply troubling” after the two “delayed justice” for the father of two then-teenage girls who were allegedly raped by the self-proclaimed prophet and fugitive, Sheperd Bushiri, in June 2018.
Kgomo’s investigative report — which followed a complaint by the father of the girls who are now in their twenties and will not be named — was released in July 2020 and stated that it was given to Batohi “to take cognisance of the involvement of advocate Van Deventer [and Roos] in this complaint”.
Bushiri fled South Africa in November 2020 before he could face rape and human trafficking charges, the investigation of which, according to Hawks documents, began in October 2015.
Mafora said the difficulty in establishing an NPA ombud was that it would have to exercise the same powers that are vested with the authority’s head, which, Mafora added, was unconstitutional.
“That means that if any complaint goes up to the NDPP [national director of public prosecutions] and she dismisses it, that is the end of the matter and the only way of setting it aside is going to court,” Mafora explained, adding that the NPA’s ethics and accountability office needed to be strengthened to better deal with complaints.
From 2008 to 2016, Johannes Oelofse, 66, forced Dominique, who turns 26 this year, to perform sexual acts on and for him with the knowledge that she, his stepdaughter, was clinically diagnosed with the cognitive abilities of a six-year-old.
Johannes was finally convicted and sentenced to life in prison, as well as an additional 16 years’ imprisonment, for his crimes.
Theresa Oelofse, using her own money, enlisted the services of lawyers and educational psychologist Belinda de Villiers because she wanted to privately prosecute her then husband after the NPA had initially refused.
Fortunately, former NPA prosecutor Nerisha Naidoo, who is now in private practice with the Rivonia Group of Advocates, saw the case docket and deduced that there was enough evidence to prosecute Johannes Oelofse.
“Since the complainant was mentally challenged, the accused faced life imprisonment if convicted. With the hurdles experienced by Mrs Oelofse, I decided not only that a prosecution must ensue but that I will personally attend to the prosecution in the high court,” Naidoo said.
De Villiers, who provided counselling for Dominique and testified against Johannes Oelofse, said the rape survivor suffered severe post-traumatic stress disorder after she had to relive her ordeal during the trial.
“Although it has been a strenuous emotional road for Dominique, these days Dominique is feeling much more confident within herself and her resilience has improved significantly.”
This was echoed by Dominique’s mother, who said that her daughter no longer had nightmares, but that she could not go to movies and music concerts because large crowds and noises still affected her.
“Unfortunately, the financial impact is something that will be with us for a long time — R670 000 down the drain,” Theresa Oelofse said.
The father whose daughters were allegedly raped by Bushiri said the NPA had “failed” his children, contending that advocates Van Deventer and Roos had treated the alleged victims “like animals”.
“The NPA prosecutors didn’t care about us. They didn’t care because it was black girls and if [they were]white girls they would have cared. My daughters are not animals,” he charged.
“These prosecutors called my daughters just to threaten them and make them scared; they were telling them to forget about the case because it is going nowhere.”
(John McCann/M&G)
Bulelwa Makeke, the NPA’s national chief communications director, agreed with Mafora’s contention that the Constitution did not envisage an ombud office for the NPA, but added that the authority was “in the process of enhancing this accountability mechanism … through the establishment of the office of ethics and accountability in the NDPP’s office”.
“The processes of establishing this office are far advanced.”
Last week, the NPA did not answer questions related to the Hawks judge’s report on Van Deventer and Roos’s alleged delaying of justice for rape victims, and Makeke said this week that there was an investigation into the prosecutors.
Kgomo’s report stated that it was given to Batohi. But Makeke said: “There appears to be no record of such a report from the judge lodged with that office, which is part of what our investigations entail.
“It is for that reason that it was difficult to respond to your [questions] at the time. We note, however, how sensationalist your headline was, even leading with the NDPP’s image.
“This is a very serious case and the allegations against the prosecutors are even more serious.
“We will address the allegations accordingly in the media space when all the relevant information has been obtained,” Makeke said.