Justice fails victims

The days of school friends picking amajikijola (berries) from the bush above the Tugela river seem a lifetime away for Sihle* and Sibongile*.

The taste of the wild mulberries was forever poisoned on September 17 1998, when a young stranger with “bad eyes” appeared on the dirt road, saying the children would be shot for stealing the white man’s fruit.

The terrified children scattered into the bush. But Sihle and Sibongile had dropped their books and were scared of being punished if they returned home without them, so they ran back.

The young man blocked their way, showed them a gun and threatened to hit them if they tried to pass. He led the two 12-year-olds up a steep path through thick bush.

After ordering the girls to take off each other’s clothes and to slap each other, he made Sihle sit on a rock and watch while he raped Sibongile. Then he ordered Sibongile to sit on the rock while he raped Sihle. Other ghastly allegations do not bear repetition.

The man told the two girls to dress, took them down the hill to the river and made them wash their bodies and underwear to remove the evidence.

A local taxi driver came upon the children as they staggered to their homes in the late afternoon. He took them to Sibongile’s home.

When the police arrived, their fathers accompanied them to the station. No statements were taken and they were told to go back home, because they should have come with their mothers if they were reporting rape. The district surgeon did not examine them until the next day.

No one had any hope that the rapist would be found. Then, just a week after Sihle was persuaded to return to school with a bodyguard of her peers, the rapist reappeared on the same road with his gun. An adult, finding him suspicious, chased him away and Sihle then revealed who it was.

Sipho Gift Khanyile was arrested in Msinga district on November 19 1998. He was charged with two counts of rape and was denied bail.

The girls could identify the rapist and were eye-witnesses to each other’s rape, all positive factors when considering the statistical odds against a conviction.

Four years on, there is a conviction—but not yet a sentence. They also have a catalogue of the secondary abuse of children by the criminal justice system.

It is a 100km round trip from Msinga to Estcourt. Sihle and Sibongile had to make this journey to court 20 times over three-and-a-half years before finally giving evidence. The witnesses and supporters attended at least another 10 times.

During this period, every aspect of the system intended to bring the girls justice failed them and compounded their distress.

Three times the children were called into open court to face the rapist, though it had been agreed they should testify through an intermediary.

Nineteen remand hearings were held at the regional court in Estcourt before the case went to trial—and earlier remand hearings had been held in the district court. Sometimes the case was remanded because there was no space on the court roll, sometimes because there was no social worker available to serve as an intermediary. Twice it was remanded because the accused dismissed his legal aid lawyer. Once it was remanded because he was hungry; once because the prosecutor found a letter from the pathology lab asking if DNA tests were required on the samples taken by the district surgeon. The letter was more than a year old and no one had replied to it.

Three years, three prosecutors and two magistrates later, the director of public prosecutions sent a letter to the court asking that the prosecutor “expedite the matter” because the accused had been in custody for too long. No social worker was available at the next hearing and the prosecutor pleaded that the children should give evidence in open court because he was under pressure to go ahead with the case.

This would have meant Sihle and Sibongile would be cross-examined directly by Khanyile, who was conducting his own defence. The girls insisted they could not do this. The case was remanded and ChildrenFIRST, a children’s rights organisation, arranged to bring an intermediary from Durban for the next hearing.

The next hearing, on November 10 last year, was before a different magistrate with a different prosecutor. The magistrate insisted on having a formal hearing into the need for an intermediary.

The children did not see a counsellor until three years and nine months after the rape because the prosecution was concerned that a counsellor might affect their evidence.

From October last year to March this year the case was heard on Saturdays, because the weekday roll was full. Taxis do not run from Estcourt to Msinga on Saturday afternoons, so the children had to climb on the back of a bakkie at 5.30am for the bumpy journey to court.

Child rape carries a mandatory minimum sentence of life imprisonment and a life sentence can only be handed down by a judge—so these cases are remanded for sentencing to the high court.

In giving his verdict, the magistrate commended Sihle and Sibongile for their strong testimony, found Khanyile guilty and referred the case to the Pietermaritzburg High Court for sentencing.

On October 21 this year Judge Herbert Q Msimang referred the case back to Estcourt because the magistrate had not ascertained if the children understood the prescribed oath.

On November 13 the two children were summoned back to court for the judge to decide if the magistrate had acted correctly. The prosecutor arranged an intermediary, but the judge decided to call the children into court in Khanyile’s presence.

The relief of the children, their families and supporters was palpable as the judge upheld the conviction.

Everyone thought the ordeal was over when the defence advocate who appeared for Khanyile in the high court declared that he could offer no reason why his client should not receive two life sentences. But it soon became clear that the defence, the prosecutor and the judge had not properly read the record.

The defence said Khanyile was now 18, which would have made him 14 at the time of the rapes. The judge adjourned the case for a month to call for reports from probation and social workers with a view to sentencing Khanyile as a juvenile.

Outside the courtroom, the prosecutor denied the existence of an affidavit from a doctor confirming that X-rays proved Khanyile was at least 18 at the time of the rape—until his file fell open at the page with the doctor’s signature.

The case continues on December 12.

*Names changed

Deborah Ewing is a freelance journalist and assistant editor of the journal ChildrenFIRST, which will be publishing a dossier on this case with recommendations on how the justice system can better protect the rights of child rape survivors

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