Court orders state to fulfil its duties and help 12-year-old rape survivor

After two-and-a-half years of being shuffled from pillar to post, a Free State advocate has finally secured a high court order directing the state to provide a 12-year-old rape survivor with the help she needs.

In making the order, Judge Mpina Mathebula on Monday described the girl at the centre of the case as “a vulnerable child who has endured more than her fair share of wallowing in the periphery of society in her few years of existence.”

Born into a violent home where she witnessed “extensive and graphic domestic violence between her parents,” the girl – identified only as ‘R’ in court – was then orphaned at five. She was subsequently placed in the care of her maternal grandparents under which she continued to be exposed to ongoing violence as well as alcohol abuse and was raped by a neighbour when she was seven.

She has been diagnosed with foetal alcohol syndrome as well as epilepsy and with her grandparents now also dead, she has recently become dependent on alcohol and snuff tobacco.

She has also never been to school. A local special needs school did at one stage enroll her as a pupil but has since refused to allow her to attend classes because of her behavioural problems.

In 2018, the court appointed advocate Hasina Cassim to act on behalf of the girl, as her ‘curator ad litem’.

Cassim has since then been fighting tooth and nail to secure state assistance for the child but to no avail. Eventually, she approached the court with an urgent application to force the state’s hand, saying in the papers the girl had been “wholly neglected” and “treated with contempt” by the provincial departments of social development, health and education.

Mathebula said on Monday that the court would “always come to the aid of the vulnerable where their welfare and life is under threat and ignored by those tasked with the responsibility to protect them.”

Of the local special needs school’s refusal to allow the girl to attend classes, the judge said this was against the law.

“The minor child is effectively being barred to attend school until the [school and the school governing body] are satisfied that she has been cured. That loses sight of the fact that she is growing up and is purportedly receiving therapy and on medication … There is no tangible evidence that she is a danger to other learners … Every child who is admitted to a school must be allowed to attend the school.”

She said to only allow the child to attend class once all her impediments had been dealt with, would be to risk “perpetuating exclusivity”.

The judge ordered that the child be moved from her aunt – with whom she has been living since her grandparents’ deaths – to a place of safety. She also ordered that she be provided with physical and psychological healthcare and that the local special needs school allow her to attend classes.

The Centre for Child Law, which has been involved in the case since 2018, said it was pleased with the judgment but disappointed that it had come to this.

“It is absolutely unacceptable that we have had to go such lengths to compel duty bearers to provide care and education to an evidently vulnerable child. The child has been thoroughly failed by systems meant to protect her,” the centre’s Anjuli Maistry said.

“We will continue to monitor the implementation of the court order and place the necessary pressure on duty bearers to comply with their constitutionally mandated obligations. R is not the only child with a disability that has been ignored and we will continue to fight to advance the rights of other children with disabilities.”

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