Werner Menges
8 April 2008
Windhoek — A landmark judgement, in which the High Court last year ordered the Minister of Education to pay more than N$100 000 to a mentally handicapped child and her guardian because of an incident in which the child was allegedly raped by a teacher during a weekend when she was supposed to be in the safety of a State school hostel, went on appeal in the Supreme Court yesterday.
The question whether it was indeed proven that the girl had been raped or sexually assaulted took centre stage during the hearing of the appeal before Judge of Appeal Gerhard Maritz and Acting Judges of Appeal Johan Strydom and Simpson Mtambanengwe.
The three Judges reserved their judgement after hearing arguments on the appeal from Christie Mostert, representing the Minister, and Lynita Conradie, representing the child's grandmother and lawyer Susan Vivier, who had been appointed by the High Court to represent the child's interests in the legal proceedings that were started as a result of the alleged rape or indecent assault of the girl.
Judge Elton Hoff ordered the Minister - and by implication, the public treasury - on August 30 last year to pay N$80 000 to the child for general damages and damages for emotional shock, pain and suffering that she was claimed to have experienced as a result of events that were claimed to have happened on the weekend of August 2 to 4 2002.
Judge Hoff further ordered the Minister to pay N$25 000 to the child's grandmother and foster parent as damages for emotional shock that she was claimed to have experienced over the same incident, as well as N$1 346,70 to compensate her for medical expenses incurred when the child was treated in hospital after the alleged incident.
The girl was 17 years old at the time of the incident.
According to evidence heard by Judge Hoff, she was mentally handicapped, with the result that she at that age had the mental capacity of a pre-school child.
She was a pupil at Môreson School in Windhoek, and was living in the school hostel.
Before the weekend in question, her grandmother informed the hostel superintendent by telephone that she would not be able to fetch the girl for the weekend.
The grandmother asked the superintendent to keep the child in the hostel that weekend.
The grandmother did not give any written permission that the girl could spend the weekend with anyone else.
However, during the weekend of August 2 to 4 2002, the superintendent allowed the child to leave the hostel to spend the weekend at the home of another staff member of the school in Windhoek.
The superintendent did not have the discretion to allow that to happen without permission from the girl's grandmother, Judge Hoff found.
After the girl had returned to the hostel, it was noticed that her behaviour had changed.
She had lost appetite, was less spontaneous, and was more aggressive.
While visiting her grandmother 12 days later, she reported that a teacher who had been in a relationship with the woman at whose home she spent the weekend, had raped her and threatened that he would kill her if she reported the incident.
The girl never returned to the school after that.
A disciplinary hearing was later held, and it was recommended that the teacher in question should be dismissed.
Two psychologists testified before Judge Hoff that the girl had been severely traumatised, and stated that it was unlikely that she had fabricated her claims about the incident.
Judge Hoff found that the girl was a very vulnerable child and that it would have been expected that special care would have been taken and precautionary measures put in place to prevent harm from befalling her.
He found that the hostel superintendent was negligent in allowing the girl to be taken out of the hostel for the weekend.
Because the superintendent had done this in the scope of her duties in the employ of the Ministry of Education, the Minister was according to the law liable for damages caused by her actions, it was ruled.
Mostert argued yesterday that it had not been proven that a rape or sexual assault had taken place.
He pointed out that there was evidence that the child was seen to be smiling when she returned to the hostel on the Sunday of the weekend - something that would not be expected if an incident had taken place as was claimed later, he indicated.
Judge Hoff had made a mistake when he found that the probabilities of the case favoured the version that the child had indeed been raped, Mostert also argued.
He further argued that even if the court accepted that such an incident had taken place, it had not been sufficiently proven that the girl's grandmother had also suffered emotional shock that would make the Minister liable to compensate her for damages suffered.
If this had been a criminal case, there would have been a problem to prove beyond reasonable doubt that the child had been raped, Conradie conceded in her arguments.
She added, though, that it had been proven on a balance of probabilities - the standard of proof needed in a civil case like this - that such an incident had taken place.
It could not just be a coincidence that the child's behaviour had changed so drastically after that weekend, she argued.
The change in the child's behaviour and the evidence that experts found that she had been seriously traumatised cannot just be explained away, Conradie also argued, saying that if the facts in the case were viewed in their totality, it had to be found that a rape or indecent assault had taken place.
It would follow that the Minister would have to be held liable for the damages suffered, she also argued.
The case is the first of its kind to have been steered through Namibia's High Court and now up to the Supreme Court.
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