A 14-year-old was told her alleged rapists would go free because she drank a can of cider one of the men gave her
Charlene Smith
The Welkom Magistrate’s Court is ignoring legislation that states alleged child rapists should be denied bail because “lots of these children are liars, some of them make up stories, drink and are prostitutes”, says its senior prosecutor Annlie van Tonder.
However, Van Tonder concedes: “It is usually family circumstances. Some of these people are very poor, but those cases don’t do very well in court.”
In the past three weeks the Welkom court where rape cases are a third of cases on its roll granted bail of R1000 to a man accused of raping a six-year-old child.
“The community is furious, but there is nothing I can do once a case goes to court,” says Inspector Denise Swartz of the South African Police Service.
A 14-year-old raped by five men in May was told by a prosecutor that the case against the accused would be withdrawn because there were conflicting statements and she had accepted and drunk a can of cider from one of the men. The five are out on bail of R1 000 each.
Asked to comment, advocate Pierre Smith of the National Office of Public Prosecutions: Sexual Offences said the charges would not be withdrawn and he would personally “oversee the investigation and the possible prosecution”.
In the case of a 12-year-old child who accused a man of raping her, Van Tonder says: “The 12-year-old is behaving like a little tart or a little prostitute. And this makes it difficult for the magistrate.
“We consult in detail to find out what is going on, but such cases don’t do very well in court. We have postponed the case and spoken to her father. The only charge will be sex with a minor [and] we will also get social welfare to look into the matter.
“She was raped by one person more than once, even on her own version she went back to him to get food in exchange for sex,” says Van Tonder.
“She is so bad at this stage already that the prosecutor said she was smiling at her as if it was a big joke. The prosecutor has not been in sexual offences court for long and her father is a dominee, so she was shocked by the child.”
“If the court thinks this is a little liar, or if the defence gets hold of them, then those things are a problem.”
Van Tonder says alleged rapists are getting bail in the Welkom Magistrate’s Court because “when the state’s case doesn’t look so good and if the accused says, ‘I have a job and a family to support’, and if you can prove he has a steady income, those are points in his favour.”
Welkom has a single magistrate, Susan Meintjies, who oversees all sexual offences cases. Neither she nor the court’s main sexual offences prosecutor, Charmaine Labuschagne, responded to phone calls.
Chief Magistrate Johan Fourie said he could not comment and referred the matter to the regional president of magistrates’ courts in Bloemfontein, Willem du Plessis, who said: “I don’t know what is going on in Welkom, I’ll look into it when next I am there.”
Miranda Friedman, of Women Against Child Abuse, says: “We have a law in this country that says if you have sex with a child under the age of 16 it is rape. I am also concerned with the Welkom court’s attitude to girls in general, where they seem to be regarded as either sluts or tarts.
“If children are prostituting themselves for food or money, surely this is a social problem? How can prosecutors condemn such children? And in the instance where a 14-year-old accepted a drink from a contemporary, who was related to her friend, why should she have rejected the drink? She was in a friend’s home, where she should have been safe.”
Bernadine*, the 14-year-old allegedly raped by five men, sits with her arms tightly drawn across her chest.
She comes from a stable family. Her mother, who last week began chemotherapy for cancer, has a senior position in a company she has worked at for 20 years.
She left Bernadine and her two younger siblings in the care of their grandmother because she believed Welkom was safer than the big city.
Since the rape Bernadine has lived with her mother. Tiny for her age, Bernadine speaks clearly in soft Afrikaans, often clutching on to a small crucifix.
“I was with a friend at my cousin’s house, when she decided to go and fetch another friend.” Her friend left her alone with one of the accused who allegedly took out a knife and told her if she opened her mouth he would stab her.
She alleges he took off her jacket and hit her when she began screaming. “I bit him and he ripped off my skirt and ripped open my panties, he began kissing me. His [four] friends arrived and he called them. They held me down and one by one raped me. One of them said they must stand in a row.”
She told the men she wanted to go to the toilet and was caught by one of them trying to climb out a window. They allegedly dragged her back inside and hit and raped her again.
Her friend arrived and began screaming, and two of them allegedly raped her as well before she managed to escape and call someone in the neighbourhood who had a gun, and who rescued Bernadine.
The rescuer took them to a house where one accused allegedly found them, dragged Bernadine out and threatened to kill her if she reported the matter to the police which she did.
She was taken to a district surgeon without her grandmother being notified, nor was an adult or family member present on the two occasions when police took statements from her.
The case was postponed to August 15 for trial and a new prosecutor will be appointed.
* Bernadine is not the child’s real name