Govt liable for child’s rape

THE actions of a teacher accused of raping a mentally handicapped girl on a weekend that she was supposed to be in the safety of a Government school hostel is set to cost Namibia’s taxpayers more than N$100 000.

This is after High Court Judge Elton Hoff ruled on Thursday that the Minister of Education had to be held accountable for the negligence on the part of employees of the then Ministry of Basic Education, Sport and Culture that about five years ago led to a 17-year-old mentally handicapped girl being raped or sexually assaulted by a male teacher. The girl was a pupil at Môreson School in Windhoek.Due to her disability, she at the age of 17 had the mental capacity of a pre-school child, Judge Hoff was informed in evidence heard during the trial on the claim that was pursued against the Minister.The girl had been living with her grandmother since her birth, the Judge heard.She attended Môreson School and lived in the school hostel.Judge Hoff also heard that before the weekend between August 2 and 4 2002, the girl’s grandmother contacted the hostel superintendent to inform her that she would not be able to fetch the child for the weekend, and that the girl would have to stay at the hostel for the weekend.The girl did not stay at the hostel for the weekend, though – and the price for this is to be paid by the Minister and, by implication, Namibia’s taxpayers.With the hostel superintendent’s permission, another staff member of the school took the girl out of the hostel, with the plan that the child could spend the weekend at her home.When the grandmother – who was the second plaintiff in the case against the Minister – saw the girl again two days after the weekend, she noticed that something was amiss, she told the Judge.The girl appeared to have been crying, she said.After she had fetched her granddaughter for the school holidays soon thereafter, she noticed that the child was quiet, withdrawn, restless, constantly looking out of the windows of the house as if she was expecting someone to arrive, and that she could not sleep at night.Eventually, the girl reported that she had gone to the home of a school staff member for the weekend.At the house, there was a man who suggested to her that they should “make love”, she reported.The Judge heard that she reported that he then pulled down her underwear and had sexual intercourse with her.The girl was traumatised and fear-stricken after the event, and repeatedly said that the man – identified as Harold Tjiveze, a former teacher at the school – had threatened her that he would kill her if she told anyone about the incident.She never returned to the school after the holidays during which she reported the incident.She spent some three weeks under treatment in a hospital after she had made the report.After the school’s principal had been informed of the incident, Tjiveze faced an internal disciplinary hearing that was conducted by the Ministry, Judge Hoff was informed.He was told that it was recommended that Tjiveze be dismissed.Tjiveze had been in a relationship with the staff member at whose house the alleged incident took place, the court was informed.The girl’s grandmother and, on behalf of the girl herself, lawyer Susan Vivier sued the Minister for N$250 000 in damages, plus N$1 346 for past medical expenses, as a result of the alleged rape.They claimed that as a resident of the school hostel the girl had been under the care of the hostel superintendent and, by extension, the Minister.The Minister and his employees were not entitled to allow hostel children under their care to be removed from the hostel without the written authority of the child’s parents, they also claimed.In terms of a hostel policy guide of the Ministry, the superintendent could in certain circumstances where it is not possible to get parents’ prior written permission allow a child to visit people other than the parents over a weekend, Judge Hoff noted in his judgement on the case.With the girl’s grandmother however having specifically asked that the child remain at the hostel over the weekend, the superintendent had no discretion to give such permission in this instance, the Judge stated.A special relationship must have existed between the girl, as a mentally handicapped child, and the hostel superintendent, who is a mature and experienced staff member of the school, the Judge remarked.”There existed an onerous duty of care on the superintendent to prevent harm to (the girl)”, he stated.The superintendent knew that the girl was handicapped and as a result was a vulnerable person, and also that prior written approval from her parents – or her grandmother – was required for her to visit someone else over the weekend, the Judge noted.In his view, Judge Hoff remarked, a reasonable superintendent should have foreseen that harm might befall the girl should she leave the hostel premises, and would have guarded against something like that happening by refusing to give permission that the girl could leave with the staff member at whose house she ended up spending the weekend.The superintendent in his view “took a very great risk” in giving permission that the child may leave the safety of the hostel premises that weekend, he added.Because the superintendent had been acting within the scope of her employment with the Minister, the Minister in law had to be held liable for damages caused by her fault, Judge Hoff found.He decided to award the child N$80 000 in damages, while the Minister was ordered to pay her grandmother N$25 000 plus N$1 346 for past medical expenses.Lynita Conradie of the Legal Assistance Centre represented the grandmother and the child in the case.The Minister was represented by Gerson Narib from the Office of the Government Attorney.The girl was a pupil at Môreson School in Windhoek.Due to her disability, she at the age of 17 had the mental capacity of a pre-school child, Judge Hoff was informed in evidence heard during the trial on the claim that was pursued against the Minister.The girl had been living with her grandmother since her birth, the Judge heard.She attended Môreson School and lived in the school hostel.Judge Hoff also heard that before the weekend between August 2 and 4 2002, the girl’s grandmother contacted the hostel superintendent to inform her that she would not be able to fetch the child for the weekend, and that the girl would have to stay at the hostel for the weekend.The girl did not stay at the hostel for the weekend, though – and the price for this is to be paid by the Minister and, by implication, Namibia’s taxpayers.With the hostel superintendent’s permission, another staff member of the school took the girl out of the hostel, with the plan that the child could spend the weekend at her home. When the grandmother – who was the second plaintiff in the case against the Minister – saw the girl again two days after the weekend, she noticed that something was amiss, she told the Judge.The girl appeared to have been crying, she said.After she had fetched her granddaughter for the school holidays soon thereafter, she noticed that the child was quiet, withdrawn, restless, constantly looking out of the windows of the house as if she was expecting someone to arrive, and that she could not sleep at night.Eventually, the girl reported that she had gone to the home of a school staff member for the weekend.At the house, there was a man who suggested to her that they should “make love”, she reported.The Judge heard that she reported that he then pulled down her underwear and had sexual intercourse with her.The girl was traumatised and fear-stricken after the event, and repeatedly said that the man – identified as Harold Tjiveze, a former teacher at the school – had threatened her that he would kill her if she told anyone about the incident.She never returned to the school after the holidays during which she reported the incident.She spent some three weeks under treatment in a hospital after she had made the report.After the school’s principal had been informed of the incident, Tjiveze faced an internal disciplinary hearing that was conducted by the Ministry, Judge Hoff was informed.He was told that it was recommended that Tjiveze be dismissed.Tjiveze had been in a relationship with the staff member at whose house the alleged incident took place, the court was informed.The girl’s grandmother and, on behalf of the girl herself, lawyer Susan Vivier sued the Minister for N$250 000 in damages, plus N$1 346 for past medical expenses, as a result of the alleged rape.They claimed that as a resident of the school hostel the girl had been under the care of the hostel superintendent and, by extension, the Minister.The Minister and his employees were not entitled to allow hostel children under their care to be removed from the hostel without the written authority of the child’s parents, they also claimed.In terms of a hostel policy guide of the Ministry, the superintendent could in certain circumstances where it is not possible to get parents’ prior written permission allow a child to visit people other than the parents over a weekend, Judge Hoff noted in his judgement on the case.With the girl’s grandmother however having specifically asked that the child remain at the hostel over the weekend, the superintendent had no discretion to give such permission in this instance, the Judge stated.A special relationship must have existed between the girl, as a mentally handicapped child, and the hostel superintendent, who is a mature and experienced staff member of the school, the Judge remarked.”There existed an onerous duty of care on the superintendent to prevent harm to (the girl)”, he stated.The superintendent knew that the girl was handicapped and as a result was a vulnerable person, and also that prior written approval from her parents – or her grandmother – was required for her to visit someone else over the weekend, the Judge noted.In his view, Judge Hoff remarked, a reasonable superintendent should have foreseen that harm might befall the girl should she leave the hostel premises, and would have guarded against something like that happening by refusing to give permission that the girl could leave with the staff member at whose house she ended up spending the weekend.The superintendent in his view “took a very great risk” in giving permission that the child may leave the safety of the hostel premises that weekend, he added.Because the superintendent had been acting within the scope of her employment with the Minister, the Minister in law had to be held liable for damages caused by her fault, Judge Hoff found.He decided to award the child N$80 000 in damages, while the Minister was ordered to pay her grandmother N$25 000 plus N$1 346 for past medical expenses.Lynita Conradie of the Legal Assistance Centre represented the grandmother and the child in the case.The Minister was represented by Gerson Narib from the Office of the Government Attorney.