{"id":227521,"date":"2022-05-31T13:26:12","date_gmt":"2022-05-31T11:26:12","guid":{"rendered":"http:\/\/www.groundup.org.za\/article\/rape-accused-fails-in-malicious-damages-claim\/"},"modified":"2022-05-31T13:26:12","modified_gmt":"2022-05-31T11:26:12","slug":"rape-accused-fails-in-malicious-damages-claim","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/rape-accused-fails-in-malicious-damages-claim\/","title":{"rendered":"Rape accused fails in malicious damages claim"},"content":{"rendered":"<div id=\"article_body\">\n<p><span><span><span><span><span><span><a class=\"bigger-image\" href=\"https:\/\/www.groundup.org.za\/media\/uploads\/images\/photographers\/Ashraf%20Hendricks\/20180216%20Pretoria%20High%20Court\/Pretoria_HighCourt-8440HR.jpg\" target=\"_blank\" rel=\"noopener\"><img decoding=\"async\" alt src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/05\/rape-accused-fails-in-malicious-damages-claim.jpg\"><\/a><\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n<p class=\"caption\">The Pretoria High Court has dismissed the case of a man who sued the National Director of Public Prosecutions for malicious prosecution after he was acquitted of rape charges. Archive photo: Ashraf Hendricks<\/p>\n<ul>\n<li>A man who was acquitted of charges of raping a learner, sued the National Director of Public Prosecutions for malicious prosecution.<\/li>\n<li>The complainant, a mentally disabled learner, had withdrawn the case in 2012 but the prosecutor had persisted in his prosecution until the man\u2019s acquittal in September 2013.<\/li>\n<li>Judge Norman Davis found that the learner had not been treated fairly.<\/li>\n<li>He said the prosecutor, Absah Madzutha, had been right to proceed with the prosecution, and dismissed the case.<\/li>\n<\/ul>\n<p><img loading=\"lazy\" decoding=\"async\" alt class=\"leave\" height=\"1\" id=\"gu_counter\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/05\/rape-accused-fails-in-malicious-damages-claim.gif\" width=\"1\">A man who sued the National Director of Public Prosecutions for malicious prosecution after he was acquitted of charges of raping a mentally disabled teenager had no case, a Pretoria High Court judge has ruled.<\/p>\n<p>In dismissing the application, Judge Norman Davis commended Deputy Director of Public Prosecutions in Thohoyandou, Absah Madzutha, for his \u201cproactive\u201d approach to the case and his decision to proceed with the prosecution even though the learner\u2019s mother had attempted to withdraw the charge.<\/p>\n<p>The application before Judge Davis was brought by a man, who was arrested on the rape charge in October 2009.<\/p>\n<p>To back up his claim for damages, the applicant said the complainant had withdrawn the case in 2012 but the prosecutor had persisted in his prosecution until his acquittal in September 2013.<\/p>\n<p>Evidence before the trial court was that he had \u201cslipped into\u201d the learner\u2019s homestead, raped her and then left. She reported that she had been raped to her uncle.<\/p>\n<p>Although she was 18 at the time, there was evidence that she was mentally \u201crestrained\u201d, and had intellectual disabilities.<\/p>\n<p>The applicant however, claimed that she was \u201c100%\u201d, and that she had consented to having sex.<\/p>\n<p>The magistrate acquitted him after the trial prosecutor conceded that the charge of rape had not been proved.<\/p>\n<p>On that issue, Judge Davis said it was not up to him to make a finding on whether or not this was correct, but the learner had not been treated fairly. An inquiry into whether or not she was competent to testify on her own had been done \u201cperfunctorily and superficially\u201d and no consideration had been given to the whether or not, due to her mental disability, she was, as provided for in the Criminal Law Amendment Act \u201cincapable in law of appreciating the nature of the sexual act\u201d.<\/p>\n<p>The judge said a \u201ccurious\u201d fact in the case was that the learner\u2019s mother had attempted to withdraw the charge.<\/p>\n<p>The mother said in her statement that this was because the applicant had apologised.<\/p>\n<p>Madzutha, in his evidence before Judge Davis, said he had been involved with the case from the outset. He had been in possession of the docket, which contained various statements and documents. He had arranged to have the learner examined by a psychologist and had \u201cspeeded up\u201d the usual two-to-three-year process.<\/p>\n<p>He testified that he had been satisfied that the elements of rape had been established, and that the learner was a person with \u201ccompromised decision-making abilities and vulnerable to sexual abuse\u201d.<\/p>\n<p>At a later stage, the docket came back to him with the withdrawal statement.<\/p>\n<p>He consulted the learner and her mother and the learner told him she knew nothing about the \u201carrangement\u201d her mother had made with the applicant.<\/p>\n<p>Madzutha said he had told the mother that an apology would, at best, be a mitigating factor but it did not negate guilt.<\/p>\n<p>He testified that he had a duty to see that justice was done for victims.<\/p>\n<p>Under cross-examination, he conceded that the medical report did not reflect any injuries but said case law was full of examples where people had been convicted of rape in the absence of injuries.<\/p>\n<p>Madzutha \u201cabsolutely denied\u201d that he had acted maliciously and his evidence remained undented, in spite of long and intensive cross-examination in which he stressed that in some instances, such as domestic violence and rapes, justice dictated that the prosecution must proceed, Judge Davis said.<\/p>\n<p>\u201cAdv Madzutha was repeatedly accused of having been biased, which accusation he calmly but firmly denied,\u201d he said.<\/p>\n<p>Judge Davis said Madzutha had acted reasonably based on the evidence in the docket and there was nothing to suggest he had acted with malice.<\/p>\n<p>\u201cHe is to be commended in his proactive approach to the matter in securing the expert evidence and also in not merely having adopted a supine attitude when a withdrawal affidavit surfaced.\u201d<\/p>\n<p>Judge Davis said the applicant had failed, on a balance of probabilities, to prove that he had been maliciously prosecuted, and dismissed his claim with costs.<\/p>\n<\/p><\/div>\n<div id=\"article_copyright\">\n<p>\u00a9 2022 GroundUp. This article is licensed under a <a href=\"http:\/\/creativecommons.org\/licenses\/by-nd\/4.0\/\" rel=\"license\">Creative Commons Attribution-NoDerivatives 4.0 International License<\/a>.<\/p>\n<p>You may republish this article, so long as you credit the authors and GroundUp, and do not change the text. Please include a link back to the original article.<\/p>\n<p>We put an invisible pixel in the article so that we can count traffic to republishers. All analytics tools are solely on our servers. We do not give our logs to any third party. Logs are deleted after two weeks. We do not use any IP address identifying information except to count regional traffic. We are solely interested in counting hits, <b>not tracking<\/b> users. If you republish, please do not delete the invisible pixel.<\/p>\n<\/p><\/div>\n<p><img decoding=\"async\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/05\/rape-accused-fails-in-malicious-damages-claim.jpg\"><a href=\"https:\/\/www.groundup.org.za\/\">Source: GroundUp<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>The Pretoria High Court has dismissed the case of a man who sued the National Director of Public Prosecutions for malicious prosecution after he was acquitted of rape charges. Archive photo: Ashraf Hendricks A man who was acquitted of charges of raping a learner, sued the National Director of Public Prosecutions for malicious prosecution. The [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":227522,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","ngg_post_thumbnail":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[9928],"tags":[28001],"class_list":{"0":"post-227521","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-groundup","8":"tag-groundup","9":"entry"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/05\/rape-accused-fails-in-malicious-damages-claim.jpg","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/227521","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/comments?post=227521"}],"version-history":[{"count":0,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/227521\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media\/227522"}],"wp:attachment":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media?parent=227521"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/categories?post=227521"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/tags?post=227521"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}