The 28-year-old man who was arrested for statutory rape and impregnating a 13-year-old girl in Seshego, Limpopo, has received a lifeline after the DNA results showed he did not father the child.
The DNA results have put a spanner in the state's case, and legal expert Mpumelelo Zikalala reckons the National Prosecuting Authority (NPA) should consider withdrawing the matter in court for further investigation.
Sowetan: What impact does the DNA result have on this case, particularly regarding the direction the prosecution might take moving forward?
Zikalala: The impact is a very detrimental one from the state's side because if there's no DNA, it then says there's no conclusive evidence that indeed the sexual intercourse took place. But when it comes to the actual crime of statutory rape, it may be a bit difficult for them (NPA) to be able to prove.
Sowetan: Now that the case is with the Director of Public Prosecutions (DPP), what factors will be considered in deciding whether to proceed with prosecution?
Zikalala: They might decide to withdraw the matter while they're still investigating it further, especially asking the child who the list of individuals she had sexual intercourse with are. But the results stated now definitely have to sway them to say, 'please stop the prosecution now and withdraw the charges to allow for further investigation'.
Sowetan: How does this development affect the approach of both the NPA and police for further investigation?
Zikalala: They need to adopt a strategy of saying, we are going to investigate, then arrest, and not the other way around. Starting with arresting and investigating further doesn't work, because you're opening yourself to be sued for unlawful prosecution and unlawful detention.
Sowetan: What are the legal arguments that could be used to prosecute the accused?
Zikalala: They will argue that the accused may not have engaged in the crime of rape or the offence of rape, but there are other sexual misconduct or sexual offences that you might have committed. For example, you're fondling, you're touching.
Sowetan: What broader legal implications does this case raise regarding the handling of statutory rape allegations?
Zikalala: It calls upon a change in the approach in which these type of matters are being handled. One, it requires that they be investigated in a much more proper manner. Secondly, not to play to the public gallery and pressure we receive from politicians. You must make sure you stick to the law and the policy. If they were not under pressure, probably no one would have been arrested.
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