A SENIOR education official at a private school in Matatiele, Eastern Cape, might escape criminal charges for allegedly raping a seven-year-old school learner as the Constitution protects him from being forced to give his DNA samples to the police.
This was the view of legal expert Advocate Vusi Khuzwayo, who said the investigation into the school official might reach a dead end.
“It is in the nature of the commission of the offence that leads to that kind of dead end,” he said.
It was still unclear what happened to the girl child - a learner of the private Bergview College in Matatiele - because the alleged molester was yet to be officially identified, arrested, and brought before the court.
Khuzwayo said the official should first be a suspect in terms of the Criminal Procedure Act, “but here the person is not charged”.
“But also again a charge follows an investigation, so if someone says I was raped by A immediately, A becomes a suspect.
“But the DNA sample cut both sides, as it can lead to A being exonerated, but the Constitution says you have a right to remain silent, you are protected from giving evidence that would self-incriminate you.
“The tricky part is that you cannot arrest me and investigate me,” said Khuzwayo.
AfriForum spokesperson Barry Bateman said it was a miscommunication that Police Minister Senzo Mchunu had said the school official had complied by giving police his DNA samples.
“He has not given the samples,” said Bateman.
He said the official was not defying the law enforcers but was demanding that the correct processes be followed.
AfriForum wrote a letter to the Eastern Cape Police Commissioner Lieutenant General Nomthetheleli Mene on Tuesday, saying that the police were informed in writing late last year that legal processes were followed in handling the matter, which involved the school official.
“We wrote a letter to the police on February 17 saying we are prepared to comply, just follow the correct process, but they have not responded to us,” he said.
When contacted, Eastern Cape police spokesperson Brigadier Nobuntu Gantana referred questions to national police spokesperson Brigadier Athlenda Mathe, who declined to comment.
In the letter written to Matatiele police station on February 17, AfriForum head of private prosecutions Advocate Gerrie Nel said the young victim “was unable to identify or describe the suspect”.
Nel said the investigation’s decision to approach the school official requesting a sample was irrational and unwarranted.
“(The suspect) has never been and cannot be an official suspect in this investigation, and to claim otherwise contradicts all of the facts and circumstances.
“Our client, a career teacher, is outraged and devastated by the suggestion that he is a suspect.
“We must state unequivocally that taking a buccal sample from (the suspect) is an abuse of process,” said Nel.
He said in the letter that he had advised the suspect not to provide the sample “until an acceptable rationale is provided explaining why it is required for the investigation”.
“We will reconsider our advice if a formal request is made within the prescripts of the Criminal Procedure Act,” read Nel’s letter.
The learner, according to children's rights activist Dr Shaheda Omar, was one of thousands of children going through the trauma of gender-based violence and many of them suffered in silence as their cases went unreported.
Omar revealed this on Tuesday while political parties and human rights activists were holding protests around the country, demanding justice for the young girl, who is only known as Cwecwe.
Omar, the clinical director at the Teddy Bear Foundation, was one of many who voiced their views about the incident, which allegedly occurred on October 14, 2024, and soon thereafter, the child’s mother, who works for the police, reported it to police, but no arrests were made.
“If we look at the landscape of children at schools across the country, this is not an isolated incident as there were so many incidents that have been reported.
“There are also so many incidents that have not been reported to the authorities,” Omar said.
She said children were not safe in the environment where they are supposed to be safe, grow, learn, and develop.
“The children live with the fear of being directly and indirectly victimised,” she said.
The Teddy Bear Foundation has a programme called Court Preparation Programme, which prepares children to testify in court about what happened to them.
According to data cited by the foundation, the United Nations Children's Fund found that between 2019 and 2024, up to 50% of children went through various forms of physical and sexual abuse before they turned 18 years old, “and few cases lead to convictions”.
“Only a fraction of cases reported to law enforcement, resulting in judicial closure,” said the foundation.
The study showed only between six and seven percent of the reported cases lead to convictions because of the lack of evidence, “the burden of proof, and systemic delays in court proceedings,” reads the Teddy Bear document.
“The Teddy Bear's court preparation programme seeks to provide support for child abuse victims as they navigate the criminal justice system, aiming to increase child participation and improve case outcomes,” the document says.
There was a sample of about 5 300 children who attended the court preparation programme from 2019 to 2024.
The college’s official, who this publication cannot name because he was still a person of interest in the matter and not charged, had attracted public attention by refusing to have samples of the DNA taken from him, despite being accused of having committed the act on the child.
The official received advice from AfriForum to refuse to have samples taken from him.
Omar said everyone who might be suspected should comply with the police investigation.
She said the school and the police did not follow protocol in handling the rape allegations after they were raised by the girl’s mother.
bongani.hans@inl.co.za