Komani magistrate scathing about bungled probe into death

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A Komani magistrate last week lashed out at the police for bungling the investigation into the murder of a three-year-old Sabatha Dalindyebo boy.

“There appears to be plenty of evidence to have been investigated in this case to hold someone culpable. I am not here to make provisional findings of guilt. The state’s case is not only open to some serious doubt, it is non-existent.

“A poor young boy died being sodomised – as it appears, brutally killed, thrown away – but police have bungled the investigation,” magistrate Charles Stamper said in the Queenstown magistrate’s court on Tuesday.

Stamper called for specialised child protection units to deal with such cases instead.

Stamper was handing down his ruling on the boy’s 30-year-old mother’s bail application. She and her friend stand accused of the boy’s murder.

The Rep reported (“Mother and friend arrested for three-year-old’s brutal murder, July 16) that both accused were arrested after the naked body of a three-year-old boy was found ditched in a neighbour’s yard on July 8 in Sabatha Dalindyebo. The male co-accused abandoned his bail application when they both applied for legal aid on July 15.

The investigating officer Andile Madywabe who opposed the mother’s release, admitted in court that he had not yet obtained the accused’s criminal profile. He testified that when the mother was called in for questioning she had said the boy was with his father, but that she later changed the story when she realised the father had been called to confirm the statement. The investigating officer said the mother of the child later admitted that his friend (the male accused) took the child as they knew each other.

“The male accused said they were together that night, smoking (drugs) in the presence of the child and claimed that the mother hit the boy until he died.” The investigating officer said, according to the male accused, he assisted the mother in covering the baby with a blanket and later threw away the body.

The police sergeant said his reasons for opposing bail were that the mother was not truthful, was a non-caring mother and that the child had mentioned he was afraid of the male accused, according to people who knew them.

However, Stamper tore into the state’s case. He said the investigating officer did not deal with the aspects of bail which involved evading trial, disturbing public peace and interfering with witnesses as set out in section 40 of the Criminal Procedure Act. “So much was said by him, which had no direct relevance to the issue of bail. I have noticed that he is not an experienced police official to deal with such an application. His reasons for opposing bail are flimsy.

“He seems to have abrogated the duty of determining credibility of witnesses to himself. He is testifying to this court about unsubstantiated, useless hearsay evidence which does not help me at all as a presiding officer in this case,” Stamper asserted.

He indicated that the sergeant mentioned serious allegations of rape and abuse inflicted on the child, that were never followed up. “He produced an autopsy report that showed very serious injuries sustained by the child. When asked how the mother had assaulted the child, it was not explained. It was important and certainly expected for the officer to ask the (male) accused how, with what and where the child was assaulted. There was no evidence which would have rendered the injuries effected to be consistent with the way the child was assaulted.”

Furthermore, Stamper said the officer testified, when asked, that there was no evidence implicating the mother. “As a presiding officer I have limitations as to how far I can go into enquiring about issues in this case. I cannot prosecute or defend this case. It may be that this case was not properly investigated, and improperly presented before this court. The accused has an onus, in terms of the law, to show by evidence which she put in her affidavit that the interests of justice demand that she be released on bail.”

The mother asked the court to grant her bail because, among other reasons, she had five minor children she had to take care of and was still breastfeeding. She further stated that she was in need of professional counselling because of the death of her child and had a medical condition that required her not to be incarcerated to allow for proper medical attention. She said the state’s case against her was weak because, on the day the incident is said to have occurred, she was with a friend.

In his judgement, the presiding officer indicated that the mother succeeded by giving evidence in the form of an affidavit (which satisfied the court) stating that it was in the interests of justice that she be granted bail. The bail was set at R 1000.

The boy’s aunt, Ntombozuko Ndabambi, said the family was relieved the accused was released on bail as they believed in her innocence. “We are not happy because it is only the beginning, but we are relieved. This will allow her time to visit the cemetery to pay her last respects because she could not bury her child and, secondly, she will be able to breastfeed her baby.

“More than anything this has affected her and she is not mentally well. She will be able to access counselling and all other forms of medical counselling so as to help her restructure her statement. You will understand that, if and when your child is dead, raped and brutally murdered, you can never be in a good mental state. It is clear why she made unbalanced statements. She was and still is shocked. We will be able to take care of her and assist her in getting justice for her child.”

Children’s rights activist Petros Majola said people needed to understand that no one had been acquitted and that the case was ongoing. “However, the magistrate raised an important point that the police were incompetent. As I previously mentioned, the investigating officer in this case is weak. We will appeal or request the provincial commissioner to look for people who are trained to investigate such matters. We want to make a very strong request to the magistrate to charge the investigating officer for perjury.”

Police spokesperson captain Namhla Mdleleni said: “Before cases are taken to specialized units initially investigation must be done by detectives at the station. If there are elements of any crime the docket is taken to the child protection unit.”

The case was remanded until August 26 for further investigation.

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