The fact that a woman, charged with six rape charges, was acquitted, does not mean that she is innocent, a judge said in turning down her damages claim for malicious prosecution against the National Prosecuting Authority.
In analysing the evidence against the plaintiff, only identified in the judgment by her initials LZ, the Mpumalanga High Court, sitting in Middelburg, noted that “the devil is in the details.”
While LZ said it is impossible for her, as a woman, to rape girls, the judge said on the facts of the case fingers definitely point at her as being an accomplice to rape. The rapes involving the children allegedly took place at the homestead of a traditional healer, only identified as Malinga, who was a co-accused in the criminal case. He faced a bulk of charges, while she faced six counts of rape.
At the time of the alleged offences, 19 cases of rape of children were registered. The case dockets were opened after some of these children ranging from six to 14 ran away from the traditional healer’s homestead and reported the rape incidents.
A social worker was involved in the matter after the rape had been reported. It was established that some of these children had been taken to Malinga’s homestead by the plaintiff and most were either without parents or were indigent, and Malinga was supposed to provide for them.
LZ and Malinga faced a lengthy trial and the plaintiff was eventually acquitted, while Malinga was convicted on 11 of the charges. The essence of the plaintiff’s contention is that the prosecution had no evidence justifying the charges of rape against her and that as a female it was not possible for her to commit the offence of rape.
She also claimed that she could not have been convicted as an accomplice because at the time when she took the children to Malinga’s place she did not know of the rape allegations against him.
The prosecuting authority, on the other hand, said it had statements from the alleged victims, which implicated LZ. It conceded that as the law stood at the time, she could not have been convicted as a perpetrator of the rapes, as she is a female. But it said there was sufficient evidence that she was an accomplice or an accessory after the fact.
According to the NPA, LZ had been told by the children that they were being raped, yet she did nothing to assist them. It also emerged that Malinga from time to time paid her some money. Judge Mpopelele Langa noted that a telling fact is that the plaintiff took and delivered only girl children to Malinga. It is not clear why there was no single boy child in that ‘camp’. “The evidence suggests that she was trafficking the girls for the purposes of making them available to Malinga for sex,” the judge said.
He added that although her conduct did not comply in every respect with the definition of rape, it was still punishable as an accomplice. “The fact that she was acquitted does not mean that the prosecutor had no evidence to initiate the prosecution,” Judge Langa said in turning down the claim.