Council culpable for teen’s rape at resort

Cape Town - The Witzenberg Municipality came under fire this week for lax security measures at the popular Pine Forest Resort it manages in Ceres when the Western Cape High Court found it liable for the 2009 rape of a disabled teen at the premises.

The teen, who is now 25, cannot be identified.

She was rescued by South African missionaries in 1998 from an orphanage in Bulgaria, where she was on the brink of death.

She was 6 years old at the time, weighed a mere 7.3kg and was only 86cm tall.

She wept when she was touched and her diet consisted of diluted yoghurt, which she drank out of a steel bowl.

She spent her days in a small cot with bars and there was no physical space for her to roll over or develop motor function.

The South African couple, now her adoptive parents, sent her for medical treatment before bringing her to South Africa and arranging further intensive therapy.

Then, in January 2009, the family went on holiday to the Ceres resort.

She went to the swimming pool with her foster father and older sister.

When she wanted to play in the park, because the couple wanted her to learn to function independently, they allowed her to walk there on her own.

But when they looked for her later, they found only her shoes and backpack beside the trampoline.

Her mother noticed a boy running from the squash courts and she hurried towards that area.

That’s when she heard her daughter’s voice pleading: “This is not good. Don’t do it again. Please stop.” She had been raped.

With the help of a curator, attorney Altus Joubert, and advocates John Whitehead and Sascha E Camara, the victim took the municipality to court to hold it liable for the fact that she had been raped.

The municipality denied negligence and pleaded that, in the event the court found that it was negligent, the girl’s parents should also be held partly responsible.

The parents were cited as third parties to the action.

However, in a judgment handed down on Thursday, Acting Judge Michael Donen said this had not been established.

He said it was in conflict with constitutional principles to attribute delictual liability to the adoptive parents because they allowed their daughter to exercise independence, freedom of movement and control over her body.

Their decision to allow her to play in the park alone was reasonable and justified.

Much of the case centred on security measures at the resort.

Acting Judge Donen said it appeared from the evidence that six security guards per shift were the desirable number of personnel necessary.

However, only two were on duty the day the rape occurred and they could not be found on the terrain after the rape.

There were also no patrols between 3pm and 5pm that day.

In addition, there was a staff meeting at the time of the rape and several personnel were absent from the resort.

“It is apparent from this evidence that the municipality abandoned the protection that it was duty-bound to provide on the afternoon the victim was raped,” he said.

He also pointed out that, in the year the rape occurred, a plethora of criminal incidents occurred at the resort, which included break-ins and assaults.

In addition to this, the acting municipal manager informed the senior prosecutor in May 2008 that the resort was unsafe.

“A reasonable executive in the control of the municipality, which had assumed responsibility for the security of the resort, would have foreseen the very real risk of a very violent incident taking place there,” Acting Judge Donen said.

Despite warnings about security to the municipality, nothing was done to remedy the situation before the day of the rape, he said.

The municipality also did not attempt to explain why a security tender it intended to put out by April 2008 was not advertised.

The court found that “acts and omissions” on the part of the municipality were the probable cause of the rape.

The court awarded the victim R750 000 for contumelia, pain, suffering and shock.

The judgment also provided for the costs of therapy.

Weekend Argus