A 21-year-old rape survivor has decided to pursue her attackers in a civil court action
Sizwe samaYende
An angry Mpumalanga woman who believes she has been betrayed by the country’s justice system is quietly making history by suing the two men who allegedly raped and impregnated her.
The 21-year-old teaching graduate decided to take up the fight on her own after police bungled the criminal investigation and the local courts set her alleged attackers free because she could not remember the colour of their hats.
Her case is not, however, an isolated event. More than 150 suspected sexual offenders have walked free in the Nelspruit Magistrate’s Court in the past two months because of legal technicalities caused by police or judicial incompetence.
Refusing to accept defeat, the graduate is demanding R100 000 compensation for her trauma from Prince Mbuyane (25) and Centrance Mokoena (21). The men allegedly ambushed and raped her in KaBokweni near White River on February 4 while she was walking home after working the night shift at McDonald’s in Nelspruit.
Mbuyane and Mokoena were acquitted of the rape on September 4, but were summonsed this week to defend themselves again in civil court.
“This time I have a dedicated, top-notch lawyer to make sure all the evidence is presented to the court. My attackers were previously released simply because I couldn’t recall the colour of their hats. The court ignored the fact that I was able to identify their faces,” the woman says.
Her lawyer, Richard Spoor, is representing her free of charge and says the lawsuit is motivated “substantially by the failure of the criminal justice to deliver any justice”.
Police have confirmed that both suspects were known criminals who were serving suspended sentences for theft and assault with intent to do grievous bodily harm.
Spoor also criticised a state doctor for failing to obtain and preserve forensic evidence when he examined the woman, and for failing to give her emergency contraception to prevent pregnancy.
When the already-traumatised woman fell pregnant, she had to undergo the additional trauma of an abortion because she was taking anti-retroviral drugs that would have been detrimental to the foetus. “Taking the anti-retroviral drug was itself a trial,” says Spoor. “She experienced nausea, vomiting, loss of appetite and sleeplessness during the 28-day course.”
But the woman is lucky she even received the drugs they have been declared illegal in public hospitals in Mpumalanga. A volunteer anti-rape group, the Greater Nelspruit Rape Intervention Project (Grip), ensured that she received trauma counselling and anti-retroviral drugs to reduce her chances of contracting HIV/Aids from her rapists. Six months after the rape, she continues to test negative for HIV.
Meanwhile, McDonald’s management in Nelspruit and Johannesburg continue to refuse to pay for the drugs, which cost R2 400 a course. However, the company is now providing transport for its night-shift workers in Nelspruit.
Dr Tina Sideris, a Nelspruit-based psychologist who regularly deals with rape cases, says the civil suit is crucial for providing rape survivors with an alternative to the country’s “overburdened” criminal justice system.
“It’s encouraging that a rape survivor has finally been brave enough to pursue her attackers in civil court. Rapists know there are very few convictions because of holes in the system, so this case will send a very strong message,” says Dr Sideris.
Research conducted by Spoor and organisations such as Grip show that there have been only 20 convictions out of the 186 rape cases before the Nelspruit courts in July and August.
Spoor blames the dismal conviction rate on an absence of specialist sexual offences courts or specialist magistrates, the absence of permanent social workers in courts and basic errors by police and prosecutors. The problems result in rape cases being repeatedly postponed until magistrates are left with no option but to acquit suspects.
Spoor urges other lawyers to offer free services to rape survivors so they can pursue cases in the civil courts when criminal courts failed to prosecute rapists successfully. His law firm, Ntuli, Noble & Spoor, has written to the Mpumalanga Law Society appealing for support for the initiative. “We’re confident civil courts will succeed where criminal courts have failed simply because we can dedicate more time and care to the cases than overworked prosecutors are able to,” he says.
Cases that succeed in civil courts could result in rapists being blacklisted or losing property in order to pay damages to their victims. “And if they fail to attend court, they will be prosecuted in a criminal court,” says Spoor.
Senior Nelspruit prosecutor Wellington Mphahlele is excited about the possible precedent this case could set. “Prosecutors often don’t have enough hard evidence to work on in criminal rape cases. But civil cases, with the extra resources that these types of test cases always get, are a different story.
“This case is apparently one of the first of its kind. We’re therefore very interested in its outcome. “
Wits Law Clinic attorney Peter Jordi also stressed the importance of the case. “There is only one similar case on record, where a Cape rape survivor was awarded R52 000 in damages about three years ago. It proves that rape survivors can successfully sue, but this area of law has not been developed in the sense that there’s only one reported case. “It’s therefore great if justice can be done on this kind of a civil suit. It’s always exciting to see a suspected rapist being sued.” African Eye News Service