Rape allegation against creche worker withdrawn because 2-year-old child 'too young to testify'

2018-04-30 05:42
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A creche, situated in an upmarket Cape Town suburb, is at the centre of rape allegations involving a two-year-old girl and a creche employee, but the case has been removed from the court roll because she is too young to testify.

It is believed the employee, who was initially arrested, is back in the creche's employ. He is however still under suspension.

"Why has this person got off?" asked one parent, who spoke on condition of anonymity.

She said she and other parents were extremely concerned that the creche's principal had seemingly brushed over the alleged incident in previous newsletters.

At first, parents thought the employee had been arrested for "something like shoplifting", she said.

The principal announced last week that the employee would be back at work soon after the charges against him were withdrawn. The matter, however, may be placed back on the court roll.

The concerned parent added that, even though the case was "alleged", the child's distraught mother did not even know it had been withdrawn.

NPA probing the matter

The National Prosecuting Authority (NPA) has since said the case was withdrawn earlier this month because "the investigation is not complete". Both police and the NPA confirmed that the child was too young to testify.

An email to News24 from the mother of the child, who may not be named to protect the child's identity, said: "The perpetrator was arrested. We have a case number, and my daughter's forensic examination confirmed that she was raped. The prosecutor said they could not pursue the conviction due to lack of evidence and my daughter was deemed too young.

"My daughter has outstanding language ability [and] was able to identify the perpetrator and provide details of what happened."

She said that the case had been reopened on Friday after she and her spouse complained to the police.

A parents' meeting was held last Friday and some mothers handed out pamphlets raising their concerns.

Police spokesperson FC Van Wyk confirmed that a rape case, with the case number provided to News24, was registered at a police station in Cape Town, and investigated.

"A 38-year-old was arrested and his first appearance was [on December 7, 2017]," explained Van Wyk.

"On [April 17, 2018], the case was provisionally withdrawn by the Wynberg court.

"Consultation was done with parent and child on [February 13, 2018], by the prosecutor, and [it was] explained that the child is too young. 

"[The] case will be placed back on the court roll as soon as [the] child is ready and done with her forensic social worker assessment," said Van Wyk.

He stressed that the case was just taken off the court roll, and would be put back on the roll once forensic reports and other information was finalised.

Western Cape NPA spokesperson Eric Ntabazalila confirmed that the matter was withdrawn on April 17, "due to the fact that the investigation is not complete". 

He said that, after consultation, it was found the child was not competent to testify in court due to her age. 

"We also asked for a forensic social worker's report since the outset, which would obviously assist us [in] dealing with the case and the matter, but we have not received it. 

'No video footage'

"We were also hoping that the school would be able to access video footage (even though we do not have an exact date of the incident), but the video footage for that time period has been 'over-written'."

The NPA has requested that the child be brought back to them in October 2018 so that they can establish her competency. 

"Apart from the child's version and a J88 which shows old injuries, we have no other evidence and at this stage, we will not be able to secure a conviction," said Ntabazalila.

A J88 form records medical information, swabs and samples collected, and processes followed during an examination after an alleged rape.

The Department of Social Development in the Western Cape, which is responsible for Early Childhood Development Centres, said the matter had not initially been brought to its attention.

Spokesperson Sihle Ngobese said they later began an inquest and were told the school was notified by the parents of the child concerned in mid-November of 2017, after the incident had occurred two weeks prior.

The employee was arrested on December 5, 2017 and suspended.

"The school confirmed to social workers that, since the alleged perpetrator was arrested, he had been suspended and has not returned to the school to date," said Ngobese.

The child's parents apparently did not want to co-operate with the school's investigation and opted for a police investigation instead. The child was taken out of the school.

School complied with children's legislation

Ngobese said the school had complied with children's legislation at the time of the appointment of the staff member, and the staffer's name was not on the national child protection register. He had also completed a police clearance, which showed no criminal record before he was hired.

Ngobese said social workers would contact the police for progress on the investigation, and would provide counselling at the school and for the parents. He added that this was a first for the school.

The school was approached several times for comment by News24, and the lawyer that News24 was referred to for school comment, did not provide any in spite of several requests.

However, a document on the issue was sent to News24 from the school, with the proviso that it only be used once the school's lawyer had read the article first. Those terms were declined.

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Read more on:    cape town  |  child abuse  |  crime  |  rape

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