Child rape accused fails to appear Warrant for his arrest has been issued

THE CASE against the alleged rapist of a young girl with cerebral palsy has been postponed to February next year after the accused did not arrive on Monday when court proceedings in Upington were supposed to resume.

There was still no sign of the accused, Elvin Davids, on Tuesday and a warrant for his arrest has been issued.

The case is being heard by K M Nqadala, the Regional Court President in the Northern Cape.

The developments have been dragging on since August 2012 when the 14-year-old girl, then aged seven, was allegedly raped by a male friend of a family member.

Andre Kalis, a specialist in the fields of advocacy, policy and children’s matters at the National Council for Persons with Disabilities (NCPD) said he was flabbergasted when he found out that the accused had been released on a warning.

“All this time I was under the impression that he was detained awaiting trial. It is a disgrace that he was released on a warning for such a serious charge of child rape against him. This again goes to show that the unjust treatment of, and crime against children and persons with disabilities are seemingly perceived as being of less importance and significance.

“This is a further indication that children and persons with disabilities are treated like secondclass citizens and are not seen as having the same value as persons without disabilities. This is clearly a case of ‘justice delayed is justice denied’.”

Inge Reichert, the social worker involved in the case and who was previously involved with the Association of and for Persons with Disabilities (APD) – an affiliate of the NCPD – said she became aware of the case in March 2013 when she was assigned to conduct a statutory investigation into determining the fitness of the child’s mother in performing her parental duties.

The assignment was motivated by the mother’s alcohol abuse which apparently prevented her from properly caring for her three children.

“The girl, who cannot be named as she is a minor and in foster care, was placed in safety care for six months and then when she landed up with a foster parent she shared details about the rape, who then subsequently alerted me to the abuse,” Reichert said.

The girl’s mother submitted a formal complaint of the alleged rape incident to the SAPS in Rosedale, Upington, in August 2012 after her daughter made her aware of the alleged incident.

The girl was medically examined and the SAPS’S Family Violence, Child Protection and Sexual Offences (FCS) unit in Upington became involved.

Reichert says that no initial action was taken because the unfair and discriminatory assumption was made that the victim would not be a reliable or credible witness because of her severe cerebral palsy, including a speech impediment.

Reichert presented the case to Therina Wentzel-du Toit, the NCPD’S national director, who, in turn, got attorneys involved on a pro bono basis.

Persistent advocacy efforts driven by the NCPD as well as appeals to the highest authorities in the Department of Justice eventually led to the NPA’S national office instructing its Kimberley branch in July 2016 to commence with prosecuting procedures.

In the meantime, the NCPD approached the University of Pretoria’s Centre for Augmentative and Alternative Communication (CAAC) to assess possible alternative ways for the victim to give evidence in court.

The child was assessed in January 2017 and it was found that with the use of a tablet that was specially programmed in Afrikaans, she would be able to communicate so that all parties could follow her evidence.

Currently all the witnesses have completed their testimony. When court was due to resume on Monday this week the victim would have concluded her evidence as well as her cross-examination.

Despite the postponement, Kalis still believes if successfully contested the case can become a landmark for children with disabilities who are at least three times more likely to be abused and sexually molested than children with no disabilities.

Reichert, however, says this goes further than only children. “Many cases involving sexually molested women with disabilities don’t even get investigated, not to mention about them ever making it to court.”

Wentzel-du Toit says the NCPD has general concerns around the challenges regarding sexual abuse cases in the Northern Cape involving children with intellectual disabilities who need to testify.

“An eventual, successful outcome in this case will not just be a win for this particular girl, but for all other children, particularly females, that have disabilities and are at risk of being sexually molested,” she explained.

“These girls, and women, are failed by the system time and time again.

“This specific case is especially significant in the light of the global #Metoo movement against sexual harassment and sexual assault as well as the countrywide protests following the rape and murder of UCT student Uyinene Mrwetyana in August.”

Reichert says a peaceful public demonstration in front of the court building, to show support for the victim, will be organised. A memorandum appealing for the just and equal treatment by the police and prosecuting authorities of women and girls with disabilities as victims of crime, will be handed to the senior magistrate of the Upington Court.