A man whose rape trial could not proceed for eight years as the State could not obtain the DNA analysis of samples taken from him and against whom charges were subsequently withdrawn this year, lost his bid to claim damages from the minister of police for unlawful arrest and detention.
The accused, only identified as Mr D as he has not pleaded to any rape allegations during a criminal trial, maintained that he had nothing to do with the rape of the child and turned to the Gauteng High Court, Johannesburg to claim damages from the police.
In the opening to his judgement, Judge Stuart Wilson remarked that at the centre of this case is the rape of a 13-year-old girl, A, which is said to have taken place in tall reeds by a railway line in Windmill Park near Boksburg in August 2016.
D was arrested six months later for that offence. However, his trial could not proceed because, for a period of eight years now, the State has not been able to obtain the DNA analysis of samples taken from him and from A.
“The DNA analysis will either rule Mr. D out of suspicion or provide critical evidence against him. Given the lapse of time since the samples were taken, I wonder whether there is still hope that Mr. D’s case will ultimately be dealt with on its merits,” Judge Wilson said.
D claims that he was wrongfully arrested for A’s rape. That case was formally withdrawn in August this year. The question before the court now is whether D was lawfully arrested and detained on suspicion of A’s rape.
Judge Wilson concluded that D was lawfully arrested on suspicion of raping A, and that his claim for wrongful arrest must fail.
A medical examination performed on A was conducted a few hours after she was attacked, proved that she was raped. She is mentally challenged and according to the medical report, A was able to express herself at the level of a five-year-old.
“It is accordingly clear, at least on a balance of probabilities, that A could not have consented to vaginal penetration. There can be little doubt that A was raped on August 21, 2016, and that the offence for which Mr. D was later arrested, was actually committed,” the judge said.
The child’s mother testified that one of the children told her that A had been abducted. They went to search for her and asked a nearby vegetable seller whether he had seen A. The vegetable seller pointed them in the direction of a cluster of reeds next to a nearby railway line.
The mother eventually found A close to the railway line. A was undressed and crying. She was with a man. The man told the mother that he had seen another man raping A in the reeds by the railway line. He had gone into the reeds because he had heard A crying. He also said that the man he saw attacking A had run away.
Going by the description of the clothes which the attacker wore, D was identified. The mother went to his home and spoke to his mother, who said she had not seen him since the previous day.
The mother reported the incident to the police. When D was arrested six months later, her daughter who reported that a man had abducted A, as well as A herself, identified D as the culprit.
He, however, said that the first time he heard of A’s rape was when he returned from work the following month and his mother told him that a crowd of people had come to the home he shared with her and threatened to beat him up, because he is a rapist.
The investigating officer, whom the court commended for being an excellent witness, meanwhile told the court that D tried to evade her on several occasions when she tried to question him about the rape of the child.
Judge Wilson commented that D’s attitude on the witness stand was strangely placid for a man who had been accused of raping a mentally challenged minor. His approach was simply that the police had to make out the case that he was responsible, and that they had failed to do so.
Judge Wilson said the SAPS was justified in arresting him and that the investigating officer was in fact justified in arresting D from the moment she reasonably suspected he was trying to evade her. Apart from this, the victim and her sister also identified him as the attacker, the judge said in turning down the claim.
Pretoria News