Ann Eveleth
A Pretoria father is suing the government for failing to protect his three-year-old daughter who was raped by a state mental patient who wandered into their neighbourhood.
The Pretoria High Court will be asked next month to decide whether the state has a constitutional duty to protect the security of its citizens.
Westfort hospital psychiatric patient Buti Maseko admitted that he raped the young girl in Lotus Gardens three years ago, but a court ruled that he was not responsible for his actions as he was mentally ill.
Maseko, then 26, wandered off the hospital grounds, passed beyond the wire fence to a nearby yard, picked up the toddler playing there, took her to an empty house and raped her.
“My daughter told me, `Mama, the other uncle took me away and took off my panties and did something to me.’ I couldn’t stop crying or eat for a week,” recalled the child’s mother.
Maseko has been in and out of mental institutions since the age of 14. Described by psychiatrists during his trial as “psychotic”, “schizophrenic” and suffering from “mania, grandiose ideas and hyperactivity”, Maseko had been admitted to the hospital’s then new mental ward as a high-security patient held in a locked ward.
A ward of the state certified under Section 9 of the Mental Health Act, Maseko was then released to the hospital’s open ward on January 24 1996. The same afternoon he turned a struggling family’s lives upside down by brutalising their baby daughter.
Now the girl’s father is suing the Gauteng Department of Health for R310 000 in compensation for his daughter’s pain and suffering, and the psychiatric care she will require.
The father, represented by the Pretoria Legal Resources Centre and law firm Coetzer and Partners, says the state failed to protect his daughter’s constitutional right to security when it opened a mental ward at the former leprosy hospital without increasing the security surrounding it.
When the mental ward was opened, Westfort hospital was located a distance from the nearest residential area, but in the early 1990s the Lotus Gardens community sprang up around the hospital. Yet the low-wire “cattle-fence” remained the only obstacle between the hospital grounds and the surrounding community.
The girl’s mother says mental patients regularly wandered around the neighbourhood at the time of the attack, often asking residents for work.
Gauteng MEC for Health Mondli Gungubele is defending the action, claiming that the Department of Health owes the family nothing.
Gungubele admits in his plea that Maseko was a Westfort patient at the time of the attack, but “denies that said Buti Maseko was at the time seriously mentally ill and psychotic and specifically pleads that on or about January 24 1996 his condition was such that his transfer from a locked to an unlocked ward could be ordered. At the time of the transfer … he did not pose a danger or threat to himself, other patients or the public at large.”
Gungubele’s plea is sharply at odds with the finding of Pretoria magistrate AC Bekker, who ruled at the end of Maseko’s criminal case in August 1998 that Maseko was “not responsible for his actions at the time of the offence … [because] he could not distinguish between right and wrong”. Bekker remanded Maseko to a mental institution, suggesting Weskoppies.
Maseko told that court he understood the charge and preferred to conduct his own defence. He pleaded guilty to raping the child, but the court entered a plea of not guilty on the basis of psychiatric evidence which showed that it was “clear [Maseko] was still psychotic and schizophrenic. The psychosis was not treated and was still present during the offence.”
Maseko was admitted to Westfort in December 1995. Less than two months later, according to Gungubele, “Buti Maseko’s condition was such that it merited his transfer from a locked to an unlocked ward and that such transfer followed upon the re-assessment of said Buti Maseko by the duty registrar”.
The girl’s mother, who works as a cleaner, says her daughter, now six, has suffered nightmares and “for a time she was afraid to jump on to the bed to sleep. We are still feeling the pain.
“Me and my family were shocked at that time. When my sister phoned me at work, I thought my daughter was dead. We took her to a sangoma so she is better now, but I am afraid for her future.”