How a Convicted Sex Pest has Eluded Jail

#THIS REPORT MAY OFFEND SENSITIVE READERS#

Most of us have heard disturbing reports of how easy it is for certain court files to  “disappear” from our courts without a trace. Often, such files are never recovered and justice for the victims remains a mere figment of imagination. Could it be that the corresponding cases are simply ignored, with no one willing to take responsibility? Do we have two entirely separate systems of justice – one for the people who are deemed worthy of dedicated TV channels, and another for the unnamed majority?  - If it were some retail stores’ products, they would probably be classified as ‘no-name victims’.

John Harold Kotze of Eldorado Park convicted of raping his step-daughter in 2009, but still roaming the streets

Rape is a crime which leaves its survivors permanently scarred, the course of their lives altered forever. As long ago as 1945, international law changed the definition of rape from a sexual assault inflicted by one individual against another, to a crime against humanity. We also know that it took more than five decades for this change to be put to any test in the Foca Rape Case.

Despite this much hailed case, in South Africa our mothers, aunts, sisters, cousins, daughters and granddaughters are still not safe. Our country’s appalling statistics show that our women, young and old, remain in constant danger of being attacked, while those charged with ensuring they remain safe opt to look elsewhere.

While any single rape is indeed a crime against humanity as well as against the individual, when girls aged no more than two, nine, or thirteen months are the victims, we absolutely have to stop and demand for answers. What is wrong with our society, and where is our legal system in this whole mess? Why are there increasing numbers of such rapes, with a corresponding rise in the number of victims who don’t even bother to report the crimes?

In our examination, these journalists have identified some distinct and shocking failures within our judicial system. As much as we hope and pray that this could be an isolated case, the fears of being proven wrong is so real.

One victim in Johannesburg, whom we shall call ‘P***’, was repeatedly molested and raped from the age of six years into her early teens. [It seems highly likely that the abuse could even have started much earlier, but her memories went back only to the age of six]. The perpetrator wasn’t a stranger, a neighbour or a family friend, but her own stepfather, John Harold Kotze of Eldorado Park. And, as it was to transpire much later, this happened with full or partial knowledge of her own mother.

When she was fourteen, P*** confided in her aunt and her neighbours, but no one took any notice. In desperation a year later, when it seemed all had failed her, P*** told the family ‘secret’ to one of her brother’s friends, T*** who assisted her in making up a story.

The teenagers concocted a story she had hoped would make her stepfather leave her alone: she told the stepfather that she had had sex with T***. However, the plan failed when Kotze simply barred the fake “boyfriend” from ever visiting the family home.  Finally, with T***’s helped, they reported the prolonged abuse to the police.

When the matter was thoroughly investigated by the police, Kotze, and her mother, Amanda, were arrested and charged with seventeen counts of crime, which included molestation, rape, misuse of firearm… – the much the prosecution could fit onto the charge sheet. Kotze was later to be found guilty on twelve of the seventeen counts, while her mother was found guilty only of a single lesser charge of failing to report the crimes. She was sentenced to community service.

The regional court that had convicted Kotze realised the gravity of his crimes. The magistrate relied on Chapter 30 of the Criminal Procedure Act, which provides that “any sentence imposed by a magistrate’s court … shall be subject in the ordinary course to review by a judge or the provincial or local division having jurisdiction…” to forward the matter to the high court.

At the South Gauteng High Court, Hon Judge Coetzee reviewed the records and confirmed the conviction, and sentenced Kotze to a total of a hundred years which, when served concurrently as was ruled, would have seen him spend at least eighteen years behind bars. [Of course, in some countries he would have been handed a death sentence].

Kotze, at the time represented by an Advocate Moosa, successfully sought leave to appeal against both the conviction and the sentence. And that’s when the cracks in the case turned into a gaping hole. The leave to appeal was granted on the same day, 22 October 2009. This appeal must have been made under Section 309 of the Criminal Procedure Act, which allows for an appeal from a lower court by a person convicted.

Sub-Section (2) of this Section states: “An appeal under this section shall be noted and be prosecuted within the period and in the manner prescribed by the rules of court: provided that the provincial or local division having jurisdiction may in any case extend such period.”

The relevant rules of court refer to must have been Section 49A (1)(a): “Within 10 days of leave to appeal being granted in terms of section 316 up to and including 319 of the Criminal Procedure Act No. 51 of 1977, the appellant shall deliver to the registrar and the director of public prosecutions concerned, a notice containing the full residential and postal address of the appellant and the address of his or her legal representative.”

Not only was Kotze granted leave to appeal (which is his constitutionally-provided right), but his bail was also extended pending the outcome of the appeal.

However, investigations undertaken by these journalists show that neither Kotze nor any representatives made an attempt to file the appeal papers. Instead, it appears that he sat back and hoped that the judicial officials would simply forget about his conviction; it further appears that this is indeed what happened.

When the matter was first brought to the attention of the National Prosecution Authority officials in February this year, the response was pathetic. In an email dated February 4, 2014, copied to several NPA officials (Nathi V.N. Mncube, Hurbetin HA. Louw, and Rasigie Bhika), a spokesperson for NPA in South Gauteng, Phindi Louw, wrote:

“Accused John Harold Kotze was granted leave to appeal by the South Gauteng High Court and had his bail extended. The accused further indicated that he will need assistance from Legal Aid for his appeal. The NPA is currently waiting for the Judge President to allocate a date for his appeal; upon receiving the date from JP, notice will be sent to Legal Aid so that they are aware of the date set for the appeal hearing.   The accused can therefore not start serving the sentence since his application for leave to appeal was successful and his appeal application must still be heard and finalised.”

In essence, the NPA officials were squarely laying any lack of enforcement of the conviction at the doors of the office of the Judge President of Gauteng division. [Several unpublishable statements were made to one of the journalists who worked on the investigations].

Was the official NPA’s statement meant to deter any further inquiries? Admittedly, the leave to appeal was granted during the tenure of the now Retired Judge President Ngoepe. But knowing that such court records would surely remain in place after such a retirement, these journalists approached the current Judge President, Dunstan Mlambo, who then undertook to examine Kotze’s court file.

Within a day, the official response was delivered by his clerk: “The Judge President has directed me to inform you that a Full Bench Appeal date has not been allocated to the above-mentioned matter because the appeal record has not been filed as yet.” [Here is the complete response from the Office of the JP].

When confronted with the Judge President’s response, none of the NPA officials who had been copied-on the NPA’s official response dared to even acknowledge their errors – they all chose silence, which in this case isn’t a virtue. So we have to ask: what is the point of urging victims to go through additional ordeal of reporting crimes committed against them, then having to testify against their tormentors in court, only to be forced to live with the same perpetrators even upon successful conviction? Whose responsibility should is it to ensure that sentences passed by the courts are enforced?

One school of thought maintains that it is the complainant’s responsibility to liaise constantly with the initial investigating officer(s) to ensure that a sentence is enforced. uSpiked contends that this adds massive and unnecessary burden to the complainants who are already suffering as victims. Besides, many victims have little or no knowledge or experience on legal process, nor the resources to access the necessary assistance.

Constitutional law expert, Prof. Shadrack Gutto of UNISA, was deeply disturbed by our findings, affirming that in criminal proceedings, the responsibility in fact lies with the state. [After all, criminal cases are usually phrased as “the State vs John Doe”].

Furthermore, in this particular case, P*** was presented to the courts as a witness. The fact was that she was the victim, but from a legal perspective, as the case was handled, she was just another witness who confirmed the criminality of the accused person as had been proven by the police’s investigations.

Then Brenda Wardle of Wardle College of Law directed us to a case law that places responsibility squarely on the convicted person – in this case, John Harold Kotze.

In their unanimous decision, Constitutional Court Justices Ngcobo (CJ), Cameron, Froneman, Jafta, Khampepe, Mogoeng, Nkabinde, Skweyiya, Van der Westhuizen and Yacoob referred to the ruling on CCT 115/09 SJ Mthembu vs The State, which states: “…Convicted persons out on bail pending appeal or application for leave to appeal are under an obligation to ascertain the outcome of their appeal processes and to present themselves to serve their sentences if the appeal processes fail.”

So why should P*** herself be expected to follow up on the enforcement of the court verdict? She had already been repeatedly abused – for as long as she could remember – by someone she ought to have been able to rely on for care and protection. When she finally believed that justice was on her side, those charged with defending her dropped the ball. How could she then be expected to extend her own apparently court-endorsed suffering?

Sadly, P***’s nightmare seems far from over. Investigations by these journalists have established that the convicted rapist has attempted to force her to sign an affidavit changing her already-court-accepted version of what he did to her, and that he is further determined to make her current life intolerable. When she refused to sign the prepared affidavit, Kotze succeeded in having her harassed and tormented by certain police officers based at Eldorado Park Police Station where he opened at least two criminal cases against her.

In the first case, he accused her of intimidation. This, he subsequently withdrew and shortly thereafter opened another one against her for assault. Medical reports confirm that P***, now aged 29, was in the final stages of a pregnancy when she was arrested for this alleged assault. She was locked up for an entire weekend and required to make several court appearances later, only for the case to go cold.

The investigating officer on this second case would not respond to our questions as to why he had failed to establish that the ‘complainant’ in the case, (John Harold Kotze), had an unserved conviction against him – a conviction in respect of the person he was then laying charges against. It is further not clear how the detective could accept that a heavily-pregnant woman could actually physically have committed the assault on two people as described in the court docket.

Other than her husband, P*** has been left on her own. In the eyes of the Eldorado Park community, where she and her tormentor both still live, she must surely have fabricated the molestation and rape accusations, otherwise why would her alleged rapist still be free? The community has no reasons not to believe his version: that the High Court had cleared him on appeal.

Who within the NPA took his or her eyes off this nasty ball? Could it be that the victim (P***) and the convicted stepfather aren’t important enough? And how many other such cases have been falling through the cracks of an incapacitated and dysfunctional judicial system?

These journalists’ quest to get to the bottom of this mess has proven entirely unsatisfactory.  Having failed to get definitive answers from the NPA, we turned to the numerous NGOs that claim to be concerned with such matters. While some we spoke to clearly don’t have resources or capacity to be involved. But particularly disappointing was the Women’s Legal Centre.

Our first call to the Centre was received by Jody Lee Fredericks who made it clear that P***’s matter as we had related it didn’t fall within her turf. We would have to wait for her colleague, attorney Sanja Bornman, to be available.

When these journalists finally got hold of Bornman, she seemed keen to take on the matter, but informed us that in order to do so she needed an express mandate from the victim. We believe this is not in fact so: when seeking donor funding to advocate on women’s issues, do these organisations mention that they will have to seek individual mandates from suffering women! Or do they just make use of high-profile issues to justify their existence!

However, we asked P*** whether we could pass on her contact details to Bornman. Her response was that if by doing so other similar cases that have fallen off the grid could be addressed, she was happy for us to share her details with WLC.

We did pass on all the information we had, including P***’s contact details, to Bornman. Several weeks passed without any further communication from this prestigious organisation, which claims to advocate for women’s rights. [How we wished all women could collectively claim some royalties from every organisation that ever used the word ‘women’ in their corporate names].

When we spoke to the ever-busy Bornman shortly before publication, she told us that they were still trying to locate the initial prosecutor on the matter. Another extension for the convicted rapist. What has the identity of the initial prosecutor got to do with a failed enforcement of a conviction? We asked. If her crusade were to reveal that the initial prosecutor has either left the service or died, would the matter be simply dropped? She had no answers worth publishing.

These journalists have been left speechless. According to Bornman, it indeed seems that if a prosecutor who oversaw your conviction were to disappear mysteriously, your conviction would be wiped clean. We received no satisfactory answers at all, so what happens to the poor women who call the Centre seeking legal guidance?

As journalists we are trained to be persistent, but supposing the caller were a victim of sex crime, would they make that second, third or fourth call? How many workshops, conferences and protest marches do such organisations hold in a year? What good is any of this if there aren’t any results to be seen by and for victims?

P*** hasn’t been seeking any compensation, but has patiently been waiting for justice and the regaining of some of her dignity. Shortly before publishing her story, we once again gave her a call. We didn’t have any answers for her… the most we could do was to listen to her as she reaffirmed her determination not to give up. 

All we can now do is to continue calling for action on her behalf and all the other victims whose lives have been ruined by a failing system.

See Editorial

uSpiked’s Challenge

Join Project P*** and Set our Women Free

• TO ALL REGISTRARS of our courts: We call on you to dedicate at least an hour every week going through your systems to help flush out those forgotten cases. unForget and unVault them! They should not be allowed to grow cold.
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