MALAIKA MAHLATSI

On April 5, a 44-year-old mother in a village in Cacadu (formerly Lady Frere) in the Eastern Cape walked into a nightmare – the brutal rape of her daughter. The mother had left her disabled 20-year-old daughter at home for a few hours while she ran some errands, and upon her return, found that the young woman was no longer at home. She went out to look for her and was informed by other villagers that the daughter had been seen walking with a 65-year-old man to his house.

The woman then walked to the man's house to search for her daughter, whereupon she found the man on top of her disabled child. When she asked what was happening, her speech-impaired daughter pointed to her private parts, indicating that she had been penetrated. A medical practitioner would later confirm that the young woman had been sexually assaulted.

As soon as her daughter indicated to her what had happened, the enraged mother beat up the man. Responding to the commotion, members of the community discovered what had happened and joined in to deliver their punishment. The man was viciously beaten and died from his extensive wounds. The mother was arrested and charged with murder. She was released on R500 bail a few days later. But it wasn't until May 5, on her second appearance at the Cacadu magistrate's court, that charges against her were dropped.

According to the National Prosecuting Authority (NPA), the matter was withdrawn after careful consideration by the Director of Public Prosecutions and has been referred for further investigations and an inquest. While this is a formality, there is no reason to believe that the mother will ever be charged for the killing of the rapist. She should not be. What happened in Halo No 2 village on that fateful day was not a murder.

I am not a legal expert, but I do know that despite its legal definition as the unlawful and intentional killing of another person, murder is more than this. For murder to be deemed intentional, there must be premeditation. This involves not only planning but also a demonstration of a deliberate intent to carry out the planned act.

In the case of S v PM 2014 (2) SACR 481 (GP) at paras 35-36, the court defined the term planned and premeditated murder as two different concepts, which do not have the same meaning, however, it has the same consequences. The court defined premeditated as “something done deliberately after rationally considering the timing or method of so doing, calculated to increase the likelihood of success, or to evade detection or apprehension”.

A planned one has been described as “a scheme, design or method of acting, doing, proceeding or making, which is developed in advance as a process, calculated to optimally achieve a goal”. The killing of the rapist in Cacadu does not satisfy any of these definitions.

I am strongly opposed to mob justice (even as I understand that it is often the result of a complete lack of trust in the criminal justice system by communities that are fed up with crime) and have written about it on several occasions in my column. It erodes the collective moral fibre of a society and sets parameters for lawlessness. In many cases, it has even led to the killing of innocent people.

But I am even more opposed to the rape of women. And while all women are vulnerable in our violent society, women living with disabilities are even more vulnerable. When the mother and community beat the rapist, it was in defence of a vulnerable woman who could not protect herself from a much stronger perpetrator. It is not an accident of history that many South Africans, including the Eastern Cape government, stood in support of the mother.

We all understand that she did not wake up that morning to kill. It was when she found a man violating her child in the most unimaginable way that her maternal instinct to protect kicked in. Even the act of using a chair to strike him was intended to get him off her child rather than to kill him. What happened after that initial blow with a chair was justified rage – the type that any human being, whether they are a mother, can understand. I understand it and I am glad the courts did too.