South Africa

Where is the justice for Anene?

By Rebecca Davis 22 May 2013

On Tuesday, the state announced that it would be dropping all charges against Jonathan Davids, one of the two Bredasdorp men accused of raping and killing Anene Booysen. The NPA said it simply didn’t have enough evidence to secure a conviction. We at the Daily Maverick are trying hard to keep faith in our already strained justice system, because the alternative is too dark to contemplate. When it comes to the release of a man Anene Booysen allegedly managed to name two or three times from her deathbed, we’re hoping desperately it’s motivated by sound principles. By REBECCA DAVIS.

Jonathan Davids, 22, walked from the Bredasdorp Magistrate’s Court on Tuesday as a free man. Davids had consistently maintained his innocence in the gruesome rape and murder of Anene Booysen, 17, in February. His relatives had also expressed disbelief that he could have been involved. Johannes Kana, his co-accused, will continue to stand trial in June. Kana has admitted to raping and assaulting – but not murdering – Booysen.

The kneejerk reaction to the release of Davids on social media has been one of something akin to horror. It’s important to note, however, that charges against him could yet be reinstated if a more solid case is built. If Davids was to go to trial next month with a flimsy case and be acquitted, however, there would be no further chance to prosecute him due to the South African version of double jeopardy.

Nonetheless, as it stands, some troubling questions remain. We do not have the full facts at our disposal at the time of writing, but it appears that the state could not build a sufficiently strong forensic case against Davids. “We understand the sense of shock and outrage that was induced by the incident, however, as the prosecution we can only prosecute successfully on sufficient evidence,” NPA spokesperson Eric Ntabazalila said.

He also said: “The investigation revealed that there was insufficient evidence to secure a conviction.” This might seem a strange statement, since it implies that the NPA only bothers prosecuting in instances when it is certain a guilty verdict will result. But this is very much the NPA’s approach: the NPA boasts of a conviction rate of 88,8% overall, and uses these figures to deflect criticism of its performance. As a result, fact-checking NGO Africa Check reported in April, there is a certain reluctance to prosecute cases which might mess with its conviction rates.

But what makes the release of Davids hard to understand, from an outsider’s perspective, is that there appeared to be a reasonable case building against him. In February, at the bail hearing of Davids, the Cape Times reported that Davids had admitted to being at the same pub as Booysen, and to speaking to her, but he claimed he had left the pub shortly afterwards to drink wine with his friends at home. Davids confirmed that he knew Booysen well – he had lived in her family home for months at a time previously. He also confirmed that his nickname was “Zwai”, the name Booysen uttered on her deathbed. He said, however, that he knew of another man nicknamed Zwai, who he claimed was a “28’s gangster and lives in the Zwelitsha township”.

The investigating officer on the case, Edmund Abels, admitted to the court that the search for the mysterious second “Zwai” was undertaken for only 30 minutes. However, he testified that Booysen’s mother said that the only “Zwai” her daughter had known was Jonathan Davids.

According to February reports, then, the evidence linking Jonathan Davids to the Anene Booysen crime was as follows.

Firstly, he knew her well, and research has repeatedly shown that the majority of femicide and rape is carried out by someone known to the victim.

Secondly, he admitted to having been in the same pub as Booysen on the night of the crime.

Thirdly, he reportedly displayed scratch marks on his arm and neck on the day he was arrested, though he told prosecutor Maria Marshall that they were the result of a fall.

Fourthly, police said at the time that blood and semen might have been found on his shoes and trousers, although Abels admitted that they were unsure whose clothes – those of Davids or Kana, presumably – the forensic matter was found on.

Fifthly, and most damagingly, the bail hearing heard that Booysen, on her deathbed, had told at least two separate medics that it was “Zwai and his friends” who had raped and assaulted her.

Davids had also had previous brushes with the law, though nothing remotely comparable to the rape and murder of Booysen. He had been previously convicted for theft, for which he received a suspended sentence of five years. Davids had also had three previous cases of assault brought against him – two by women – which were subsequently dropped.

This is all circumstantial evidence, but presumably cases have moved to trial on less in the past. Explaining his decision to deny Davids bail in February, magistrate Graeme Cupido was reported as saying: “There is testimony that [Booysen] named Zwai, that you were at the pub, you were the only Zwai she knew, that you had blood on your shoes and grazes on your body.”

When defence attorney Pieter du Toit suggested to the court that Booysen had been drinking heavily on the evening of the incident, and that the morphine she was administered in the ambulance could have further affected her recollection of what had happened, Cupido dismissed this.

“The fact that she had morphine does not mean that she could not identify you properly,” the Cape Times reported Cupido telling Davids. “She was clear and she said the name a second time. In these circumstances there is indeed a prima facie case against you.”

Three months down the line, however, the decision has been taken to abandon this case, and we can’t be sure how much that owes to sloppy police work, or a clear-sighted NPA strategy. We hope it’s the latter, but we can’t be sure. Despite the NPA’s boasts of its conviction rates, after all, the Davids case is the latest in a series of perplexing outcomes in NPA-involved cases. Last week, former Fidentia boss J Arthur Brown received only a fine of R150 000 and a suspended jail sentence for his role in one of South Africa’s biggest corporate scandals, a crime which saw two of Brown’s juniors previously receive seven-year jail terms. Judge Anton Veldhuizen, noted columnist Stuart Theobald, had “scathing words to say about the prosecution”.

In March, seven police officers were acquitted of the murder of Ficksburg activist Andries Tatane, despite the fact that the incident was captured on SABC TV. The NPA said it would not appeal the verdict because it would be “a waste of taxpayers’ money”. The prosecution was hamstrung by two key police witnesses contradicting former evidence, and the fact that the SABC footage was not introduced in court because it was edited. Nonetheless, the SA Human Rights Commission described the outcome as “a blemish on our system”.

And nobody, surely, needs reminding of the farcical aspects to the Oscar Pistorius bail hearing in February, where the state’s case came in for stern criticism from magistrate Desmond Nair. Leaving aside the slipshod elements of the police’s investigate work on the case, international observers were left bemused by the news that the lead investigator was facing NPA-brought murder charges of his own, leading to his subsequent hasty replacement by police commissioner Riah Piyega.

One of the most distressing aspects of the way the case against Booysen’s killers may be shaping up is the fact that it reflects a pervasive inability to bring those who commit violence against women in South Africa to book. In March this year, a report in The Star indicated that only 8,3% of rape cases in Gauteng resulted in a successful conviction last year. Of the total 23,086 cases reported (likely a drop in the ocean of the total amount committed), only 55,6% were referred to the NPA for prosecution. Of these, 35,6% were thrown back to the police for further investigation; and of the cases that proceeded to court, 38,4% were thrown out because of an incomplete investigation.

“The figures show that shoddy and incomplete police work often fails rape survivors,” Gauteng community safety MEC Faith Mazibuko said at the time. In the face of this mess, who can blame rape survivors who feel there is nothing to gain from reporting their rape?

The state still has Johannes Kana to prosecute for the rape and murder of Booysen, but it seems clear that there was more than one person responsible for her gruesome death. There have been no reports of firm leads on any further suspects.

And what will happen to Jonathan Davids now? One of the reasons for denying him bail in February was the magistrate’s awareness of the anger of the Bredasdorp community and fears that the police would not be able to guarantee his safety. At the time it was reported that the community had mounted a petition making it clear that they would not tolerate anyone guilty of the crimes continuing to live in their vicinity.

It is to be hoped that the Bredasdorp community will respect the findings of the court. But if widespread shock and anger over the release of Davids was experienced by many in wider South Africa on Tuesday, as social media suggested, it is likely those emotions will be heightened in Bredasdorp. Vigilante justice is very much a reality in South Africa, with research by the Centre for the Study of Violence and Reconciliation finding that an average of two vigilante killings occurred in the country every day during the period of a 2009/2010 study. The centre’s Nomfundo Mogapi said last March, following the necklacing of three suspected thieves in Khayelitsha, that collective violence was a response to frustration with a lack of support from the legal system. Many South Africans’ faith in that legal system will have taken a further knock on Tuesday.

For the sake of sanity, we want to believe that the NPA had rock-solid reasons for now freeing the only man whose name Booysen was allegedly able to utter before she died her agonising death. The South African public is desperate to see justice done in a country where, too often, terrible wrongs are seen to go unpunished. Nothing can bring the Bredasdorp teenager back to life, but the jailing of all those responsible could restore a little of the dignity so cruelly ripped from her. DM

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