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Child rape cases in the spotlight

Publish date: 16 September 2019
Issue Number: 841
Diary: IBA Legalbrief Africa
Category: South Africa

A number of experts have criticised the NPA for having the eight-year-old testify in her rape case in the Gauteng High Court (Pretoria), after Nicholas Ninow (20) was today found guilty of raping her at the Dros restaurant last year. According to a Weekend Argus report, the Teddy Bear Foundation’s Shaheda Omar said the child may have been well prepared on the day, but that did not mean she was okay or would be fine afterwards. ‘It is an unpredictable process and could be quite risky, not knowing the aftermath of testifying and how it would impact on the child. Feelings such as fear, anxiety, guilt and sadness and other emotions may surface.’ She said the NPA was subject to limitations as far as psycho-social well-being of the child was concerned, and pushing for the child to testify at all costs was not the best route to pursue. ‘Ideally, no child should have to retell their story, but in cases where there are no witnesses, it may be the only option to secure a conviction. But in this case there was a plea of guilt and there were other witnesses,’ Omar said. Explaining the decision to have the child testify, an NPA spokesperson countered: ‘Yes, Ninow pleaded guilty and normally the court would then proceed to conviction. However, the court had only heard his version through his plea explanation. And that version was not the same version that was given by the minor to the prosecutor during consultation. So, the only reasonable thing to do was to call her (to testify).’

Full Weekend Argus report (subscription needed)

Justice & Correctional Services Minister Ronald Lamola will review a decision by the correctional supervision and parole board to release convicted rapist and abuser Bob Hewitt on parole, says a TimesLIVE report. In a statement yesterday, the Justice Department said Lamola had received confirmation from the parole board that Hewitt would be released on parole. A letter sent to one of Hewitt’s victims confirmed he would be released on 23 September. The letter also stated that Hewitt would be released under the ‘high risk’ category for the duration of his parole which ends on 19 September 2022. ‘Upon studying the CSPB’s decision, the Minister noted with grave concern the lack of participation by the victims of crimes in the parole consideration process. It is critical that the justice system in all its facets pays a considerable amount of attention to the victim-centric approach, as envisioned in national framework on sexual offences of 2012,’ the department said in its statement. It added Lamola had instructed the National Commissioner of Correctional Services, Arthur Fraser, to take the matter on review with the correctional supervision and parole review board, as per Section 77(1) of the Correctional Services Act. According to the department, referring the matter for review means the parole board’s decision to release Hewitt is now suspended. Hewitt‚ who was a major name on the international professional tennis circuit‚ was convicted in March 2015 of raping two teenage tennis pupils and sexually assaulting a third in the 1980s and 1990s. He has served the minimum time required to be considered for parole.

Full TimesLIVE report

Whether a 13-year-old teenager could be mistaken for an 18-year-old woman was central to the successful appeal of a man convicted of statutory rape. A Times Select report notes that according to two judges of the Gauteng High Court (Pretoria) and a medical expert, there are scientific ways to prove that it is indeed possible. Albert Mohale was convicted in 2015 for the statutory rape charge and sentenced a month later to six years’ imprisonment in the Regional Court in Klerksdorp. In her recent ruling on the 29-year-old's appeal, Acting Judge Noluntu Bam gave details of how Mohale and his teenage lover had met in December 2013 at a Klerksdorp tavern and kept their relationship from her family for months. Mohale, throughout the criminal proceedings against him, insisted he had no idea the girl was 13. Bam acknowledged that during cross-examination of the teenager she admitted that because of her developed physique she understood why he may have believed she was older. Key to Mohale’s defence was a report by the doctor who examined the 13-year-old who registered that she appeared to be at Tanner stage 5. The Tanner scale is used to determine the development of young women’s bodies and Tanner stage 5 marks the final phase of a child’s physical maturation. Bam, who found several other reasons that appeared to support Mohalke’s defence, criticised the magistrate for completely ignoring this information in the medical report on the girl’s phase of maturation. Because there was a possibility of Mohale’s story being possibly true, that meant that the state had not proven its case beyond reasonable doubt, with Bam ruling that the conviction and sentence be overturned and Mohale released from custody. Judge Jody Kollapen concurred.

Full TimesLIVE report