Appeal over rape of schoolgirl dismissed

THE Supreme Court has dismissed an appeal by the Minister of Education against a High Court judgement in which Government was held liable over the rape of a mentally impaired girl by a teacher almost ten years ago.

The result of the Supreme Court’s appeal judgement, which was delivered on Friday last week, is that the Minister of Education must pay N$80 000 to the representative of a young woman who, as a 17-year-old, was sexually abused by a teacher after she had been taken out of a school hostel in Windhoek one weekend in August 2002.That weekend, the girl was taken home by a hostel worker against the instructions of the girl’s grandmother, who had been raising her in the place of her parents.At the hostel worker’s house, the live-in boyfriend of the hostel worker raped the girl, it was alleged in a trial which took place before Judge Elton Hoff in the High Court in Windhoek in 2007. The boyfriend was also a teacher.The girl in question was severely intellectually impaired. At the age of 17, she still had the psyche and mentality of a pre-school child, Judge of Appeal Gerhard Maritz recounted in the Supreme Court’s judgement. ‘By all accounts, she was a very vulnerable child,’ he noted.In the High Court, Judge Hoff ruled in favour of the girl’s grandmother and a representative acting on behalf of the girl at the end of August 2007, when he found that the Ministry of Education had a duty of care towards the girl to supervise, protect and keep her from harm during her stay at the school hostel.In breach of that duty of care and the hostel rules, employees of the Ministry wrongfully and negligently failed to take care of the girl at the hostel during the weekend in question, it was found.Judge Hoff’s findings were upheld in the appeal judgement, written by Judge Maritz, with Acting Judges of Appeal Johan Strydom and Simpson Mtambanengwe agreeing with the judgement.On one point, though, the three appeal judges did not agree with Judge Hoff’s ruling.Except for awarding N$80 000 to the girl, Judge Hoff also ordered the Education Minister to pay the girl’s grandmother N$25 000 in damages for the emotional shock and trauma she had suffered because of the abuse of her granddaughter, and an additional N$1 346 to compensate her for medical expenses incurred as a result of the incident.The Supreme Court allowed the appeal against the damages award to the grandmother, finding that insufficient evidence on the psychological effect of the incident on the grandmother had been placed before Judge Hoff.As a result, it was decided to reduce the award of N$25 000 to the grandmother to N$10 000. The Education Minister must still compensate her in an amount of N$1 346 for past medical expenses as well, the appeal court ordered.Judge Hoff’s finding in the High Court was that it had been proven on a balance of probabilities that the girl had been raped by the teacher that weekend.If the Supreme Court had to consider the evidence that was before Judge Hoff afresh, it would have arrived at the same conclusion, Judge Maritz stated.He noted that the girl had by all accounts been severely traumatised after the weekend. Eventually, she opened up to an aunt of hers and, despite her limited abilities to communicate in a clear manner, reported that she had been sexually violated by the teacher, Judge Maritz recounted.The girl’s grandmother and her representative in the legal proceedings against the Minister of Education were represented by Legal Assistance Centre lawyer Lynita Conradie. Christie Mostert, instructed by the Government Attorney, represented the Minister in the appeal.