Stumbling in the pursuit of justice
The first case: a convicted rapist, who had also served time for other crimes of violence, is released on free bail while he waits to be tried on charges of repeatedly raping his own daughter. While he’s free he abducts and savagely rapes the five-year-old daughter of his brother’s fiancée.
Now the mother of the child will be paid damages she suffered as a result of the abduction and rape of her daughter. That’s because the courts have found the “combined negligence” of the police and the prosecutor caused the man – named here only as S because of his relationship to both the children he raped – to be released on free bail, “thereby allowing him the opportunity to abduct and rape” the five-year-old.
The second case: a young man is washing cars at the Kenton-on-Sea police station as part of his community service sentence. One of them is a vehicle assigned to a Warrant Officer Kani, who later finds his firearm missing. He blames the young offender who cleaned his car.
Kani, with other members of the South African Police Service, begins an orgy of assault on the young man including wounding his eye, injuring his genitals and pouring boiling water on his feet, and leaving him with at least a dozen head wounds that must be stitched up.
The young man is forced to make a “confession” that he subsequently retracts and, after Kani and the investigating officer lie on the bail information form, he is refused bail and kept in custody for 22 months until a court acquits him of all charges.
Now the man will be paid damages by the departments of safety and security and justice for unlawful arrest and malicious prosecution, as well as for unlawful detention for the entire period he was in custody.
Judgment in both these cases was handed down by the Supreme Court of Appeal on Tuesday this week.
Both judgments uphold the findings of the high court, one in the Eastern Cape and the other in the Western Cape, that the state authorities caused serious “damage” to the people concerned, for which the authorities are liable.
In both cases, young lives have been permanently scarred. The 19-year-old offender who was cleaning police cars to atone for some past misdemeanours will carry many physical and psychological scars. The appeal court said it was likely that Kani and other police officers had also assaulted two other men cleaning vehicles – one of them claimed the assault had lasted “the whole day” – so they would give evidence against the primary suspect. Both are now also suing the police for alleged assault.
The judges also said that in their view, it was “fully justified” to call Kani a “serial liar” given the fact that his evidence was “riddled with untruths and improbabilities”. “There is barely any aspect of Kani’s evidence that remains unscathed,” the judges concluded.
As to the second case, the five-year-old girl whose “uncle” brutally abducted and raped her is not likely to get much satisfaction from the fact that, in the trial following her rape, S was given two life sentences for raping her and another five years for her abduction. Nor will it give her much comfort that he was given four additional life sentences for the rape of his own daughter.
The question she will want answered is how it was possible, after the care that Parliament and the higher courts have given to preventing exactly such an incident, for such a suspect to be freed at all, let alone be granted free bail with no restraints on his movements. The answer: a negligent prosecutor who, from the judgment, sounds as though he couldn’t have cared less.
Among the disconcerting issues pointed out by the appeal court was the fact that even before the second child was attacked, S was released on free bail after some unknown person provided an affidavit saying he would provide S with accommodation. The prosecutor accepted this affidavit without any further inquiry about the suitability of the person or even the existence of the address provided.
The appeal judges found a “reasonable prosecutor” would have foreseen the reasonable possibility of S, if released on bail, “causing bodily injury to vulnerable members of the community, particularly women and children”, and would thus have taken steps to give all the relevant information to the magistrate to prevent S from being released. “The prosecutor failed dismally in his duty” to do so, the court concluded.