Dros rape trial: Why the child had to testify and how it works

Nicholas Ninow. (Deaan Vivier, Netwerk24)
Nicholas Ninow. (Deaan Vivier, Netwerk24)

The 8-year-old girl who was raped in the bathroom of a Dros establishment in Pretoria last year testified about the ordeal in the Gauteng High Court in Pretoria on Wednesday.

Social media users were up in arms about why it was necessary for the child to testify, since the accused, Nicholas Ninow, pleaded guilty to the rape on Monday. 

But it is not that simple, National Prosecuting Authority (NPA) spokesperson Phindi Mjonondwane told News24.

In simple terms, the child's testimony was required for two reasons: Her version of events differs from Ninow's, and she was the only other person present when the crime was committed. 

"Yes, Ninow pleaded guilty and normally the court would then proceed to conviction. However, the court had only heard his version through his plea explanation. And that version was not the same version that was given by the minor to the prosecutor during consultation. So, the only reasonable thing to do was to call her [to testify]," Mjonondwane said. 

READ | Dros rape: Child victim testifying to counter Ninow's version of events, not to relive trauma - NPA

"For example, in [Ninow's] version he claims he acted impulsively. But according to the minor, he deliberately followed her into the bathroom. So the NPA is trying to prove premeditation. That's why the court had to hear the minor's version.

Only other person present

"Before any court sentences someone, it has to consider all the factors in the interest of justice and society." 

In addition, because no one witnessed the actual crime, the child's version of events is crucial to establish what happened. 

"Most incidents of rape happen in private spaces, such as the bathroom at Dros. So, unfortunately, the only person who can tell the court about the sequence of events is the minor, because she was the only other person present.

"If we had any other witness that could bring that evidence before court, believe me, we would have spared the minor from testifying," Mjonondwane said. 

Karen Tewson, the NPA's deputy director of court preparation, told News24 everything possible is done to ensure the safety and welfare of child witnesses. 

ALSO READ | Dros rape trial proceeds despite Nicholas Ninow pleading guilty

Before testifying, children are assessed by psychologists and social workers to determine whether they can indeed testify. 

The child is also not required to appear in court, but testifies from a separate room via CCTV, with an intermediary present, who asks the questions put to him or her in court in a child-friendly manner. 

"The child witness can't see what's happening in court. Everything is done through the intermediary," Tewson said. 

"The intermediary wears earphones and the child has a microphone. 

"However, the accused has the right to see who is accusing him and the right to put questions to that person. So the whole court and the accused can see the child, but the child can't see anybody."

According to Tewson, the intermediary is usually a social worker who is trained to comfort the child and ask the questions in a manner appropriate for the child's age. 

Care doesn't stop after testimony

"The intermediary also observes the demeanour of the child. She will be able to determine whether the child is tired, hungry, or agitated, and she will then tell the magistrate or judge whether the child needs a break. The intermediaries work really hard to protect child witnesses."

The children are aware that they are testifying, though. 

"One of the important things of court preparation is that the child understands that they must tell the truth. They might not understand what the word 'testify' means, but they are prepped to know they are there to tell their story and that it's very important to tell the truth." 

An assessment is also done, said Tewson, to determine whether the child can tell the difference between the truth and a lie, and right and wrong. 

Once a child has testified, they are immediately put back in the care of a social worker or psychologist who do a long-term intervention, since they had in many cases relived a horrific experience. 

"It's called 'continuum of care' - the care doesn't stop after they testified," Tewson said. 

"The court preparation officers do a sterling job under difficult circumstances."

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