MBOMBELA – While a 10-year-old girl from Tonga struggles to sleep at night, her alleged rapist may go about his business undisturbed. She sees the man every day, whenever he leaves his home which is in the same area, the very place he allegedly raped her on January 26, 2013.
The alleged rape was reported to the police the next day and the Mr Anthony Hlahla was arrested and charged, only to be released on bail shortly after his arrest. He pleaded not guilty. The trial is still ongoing.
Mr Israel Mdluli* recently spoke to Lowvelder about the day his daughter was reportedly raped.
“She was seven years old at the time. My daughter came to us (Israel and his wife) and explained what the man had done. She was in his home and he took her into the bedroom where it happened.
Mdluli and his family went to Tonga Police Station to lay the relevant charges on January 27. Hlahla was arrested and charged, but released on bail. This shocked the Mdluli family, who were under the impression that he would remain in custody while the trial was pending.
According to Mdluli, the accused’s return to his home has had a grave impact on his daughter. “She cries and cries after seeing him. Especially at night,” he told Lowvelder. Her mother tries to console her, yet she keeps saying that she feels a lot of pain. When her mother asks her, ‘what is wrong?’ she answers, ‘everything'”.
Lowvelder presented Dr Sufran Smith, lecturer in forensic social work at the North-West University Potchefstroom campus, with the scenario sketched by the Mdlulis. “This will be very traumatic for any child,” she said.
According to Smith, the fear of seeing a man who raped you and the fears that are associated with that, may cause a child to change her behavioural pattern. “It may cause her to refrain from leaving the house – a form of hiding, so to speak.” According to Smith, seeing the perpetrator will inflict secondary trauma on a child.
“The child may end up living in constant fear,” she said.
For the sake of his child’s psychological health, Mdluli tried everything in his power to expedite the case. In May 2013 he laid a complaint with the SAPS, asking why the investigation was taking so long. The police’s provincial head of detectives, Brig Thami Ntuli, replied saying investigations were done and DNA results were still outstanding. When the case resumed in the Boschfontein Court on Wednesday, Ms Germaine Vogel from Woman and Men against Child Abuse attended the proceedings. According to Vogel, progress in the trial had been held up by a number of factors. “The CCTV camera through which minor rape victims testify was not working,” she said.
The girl’s mother testified, but the introduction of a new charge against Hlahla led to the defence’s application for the postponement of the case.
According to Vogel, the testimony of the day’s second witness had to be postponed as no interpreter was available to accommodate the witness. Vogel said this was either the 17th or 18th postponement of the case.
Lowvelder submitted a media query to National Prosecuting Authority spokesman, Mr Luvuyo Mfaku as to why the case has still not been finalised. Mfaku said a trial date would be fixed on Wednesday, but once again the case was transferred to the court in Tonga.
“This office took note of the history of the matter and will ensure that, from the prosecutorial side, we will be ready to proceed at all times,” he added.
What Mfaku did not mention, was that the Constitution gives the accused the right to a fair trial, which includes the right to a legal representative of his choice. If an accused’s attorney is unavailable or in a conflict situation troubles the relationship between the two, the accused is entitled to request a postponement of the proceedings in order to finalise his legal representation. It has happened, in some court cases, that certain accused abused these rights to prolong their trial.
In Mdluli’s opinion, the accused was doing exactly that. Lowvelder asked Mfaku whether this accusation had been levelled against the accused in open court, but received no confirmation of these allegations.
The rationale behind releasing the accused on bail while his home is next to that of his alleged victim, was also questioned. In terms of the Criminal Procedure Act (CPA), an accused charged with committing two or more acts of rape, is accused of having committed a schedule- six offence.
This places a burden on the accused who applies for bail. He must prove that there are exceptional circumstances according to which his release on bail can be justified. Also, his release on bail must be in the interests of justice. Although the court ordered that the accused could be released on bail, Vogel and Mdluli feel that it should be revoked.
This, however, cannot be done arbitrarily. In terms of the CPA, the revocation of accused’s bail will only be considered if, among others, the accused has contacted or interfered with state witnesses, failed to adhere to his bail conditions or failed to appear in court when he was supposed to. Such allegations have not been levied against Hlahla.
*Pseudonym.
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