Rape victim still awaiting DNA results after 8 years as accused loses ‘unlawful’ arrest case

Judge Stuart Wilson says critical answers in the case are all in the DNA analysis which will either see the accused jailed or cleared of charges.

The family of a mentally-challenged girl who was allegedly raped at the age of 13 in August 2016 are still waiting for DNA results from a rape kit taken on the day of the incident and samples taken six months later from her alleged rapist after his arrest. 

The accused, Thabo Lovers Dimaza, lost a legal challenge against the minister of police and national director of public prosecutions (NDPP) to have his arrest on February 20 2017 ruled unlawful.

Gauteng High Court judge Stuart Wilson on Monday dismissed Dimaza’s bid to be cleared of charges of allegedly raping the mentally-challenged minor.

Wilson, in his judgment, expressed dismay at the state’s failure to finalise DNA reports in the case — seven years after having both samples. 

The rape of the girl, named A to protect her identity, allegedly took place in tall reeds by a railway line in Windmill Park, Boksburg, on August 21 2016.

Dimaza was arrested six months after the rape and samples were taken from him for DNA analysis. 

The trial, however, did not proceed because the state had not obtained the DNA analysis of samples taken from Dimaza and from the victim.

“The DNA analysis will either rule Dimaza out of suspicion or provide critical evidence against him. Given the lapse of time since the samples were taken, I wonder whether there is still hope that Dimaza’s case will ultimately be dealt with on its merits,” Wilson’s judgment read.

A medical examination performed on the victim hours after she was attacked revealed injuries to her private parts.

“According to the medical report, A was able to express herself at the level of a five-year old. It is accordingly clear, at least on a balance of probabilities, that A could not have consented to vaginal penetration. There can be little doubt that A was raped on August 21 2016,” Wilson said. 

Though Dimaza was arrested in February 2017 he was released on R5,000 bail as the prosecutor refused to continue with prosecution without a DNA report at the time.

Wilson accepted evidence by the investigating officer that Dimaza had been arrested after the victim and her cousin identified him as the man who had “abducted” her near a tuck shop where they had been playing on the day of the rape.

Dimaza argued he was innocent, saying he only heard of the rape a day after the alleged crime happened.

Wilson rejected the accused’s evidence saying it was “fragmented”.

“Dimaza’s attitude on the stand was strangely placid for a man who had been accused of raping a mentally challenged minor. His approach was simply that the police had to make out the case that he was responsible, and that they had failed to do so.”

Wilson was worried whether the rape victim would ever get justice as her case had gone cold.

“It would be wrong to move on from this case without observing that the delay in obtaining the DNA evidence that may exculpate Dimaza is, on its face, unjustifiable. Though the minister plainly had sufficient reason to arrest Dimaza, and though Dimaza could have been prosecuted on the evidence available to the minister at the point of his arrest, the NDPP was entitled to decline to press the case against Dimaza without the benefit of the DNA evidence. But the state’s failure to produce that evidence has left this case in limbo for eight years,” he said.

“That situation is wholly unacceptable. The delay in obtaining the DNA evidence and in either pursuing or finally discontinuing Dimaza’s prosecution severely undermines public confidence in the justice system. It also leaves A and her family with little hope that A’s assailant, whomever that might be, will ultimately be held accountable for the appalling crime that triggered these proceedings.”

Dimaza’s application was dismissed with costs.

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