Magistrate set rape accused free as he was ‘not interested in women’

An Umlazi magistrate set free a man accused of raping a teenage girl because he carried a bag, styled his hair and did the washing  — which, the magistrate said, meant he must be   gay and “not interested in women”.

This questionable ruling and two others by Kholeka Bodlani have now been overturned by two KwaZulu-Natal judges as pressure mounts on the Magistrates Commission to quickly take action against her.

In November last year the Sunday Times reported that about 18 cases in which Bodlani  presided  had been sent on special judicial review following complaints of incompetence against her.

The commission launched an audit of all  her cases since she was appointed in 2013  after two other  review judges slammed her for applying “shockingly inappropriate” sentences in four child-rape cases.  They said she appeared to have been “totally overcome by mercy” for the accused. In some instances, she  gave them completely suspended sentences.

In December, judges Dhaya Pillay and Graham Lopes reviewed three new matters including a pretrial hearing to test a man’s fitness to stand trial, in which Bodlani found that the man accused of raping a 15-year-old girl was gay.

While two psychiatrists and a psychologist found that he could understand court proceedings, Bodlani commented that “he was not normal”.

“His behavioural conduct, someone who would carry a purse, waving his hands, the conduct which makes the court to doubt he is a normal person. For  a man to carry a lady’s purse, it is just not normal for a man. The way he styles his hair, it is as if it is that of a female,” she said.

She also noted that he was “interested in doing household chores … he does washing”.

 “That clearly shows that the person is not interested in females, in sexual relations with females.”

Pillay said of this case: “The gratuitous commentary from the magistrate on irrelevant considerations raises serious questions about her suitability for judicial office without further training.

“She should have tried the accused on the charges, taking into account his compromised mental capacity. Instead she substituted her personal opinion founded on her spurious observations of the accused as an alleged homosexual, to conclude that he was both unfit to stand  trial  and he could not be held criminally responsible.”

In the other two matters — another rape and an attempted murder of a six-year-old by her uncle —  Lopes, with  Pillay concurring, also criticised Bodlani.

The magistrate, who was removed from the sexual offences court last year but is still hearing part-heard trials, told the Sunday Times this week that she didn’t think she had done   anything wrong and would comment fully when the audit was completed.

Her conduct in questioning a young rape complainant has also been referred to the Magistrates Commission.

According to a transcript seen by  the Sunday Times, the child was seven when she was allegedly raped by a man she referred to as “uncle”.

Five years later, in 2018, she gave evidence and was cross-examined. 

In October last year, Bodlani asked her various questions in spite of concerns by the prosecutor that all the questions had  been answered during evidence. Bodlani responded:  “If you have anything, you will later take me up on appeal.”

She asked the girl:  “Now why do you say uncle wanted to rape you? When uncle was finished what was he doing, how did you feel? 

“Was [he] rough, vigorous or forceful when penetrating you, or was he soft?”

Magistrates Commission secretary Mahomed Dawood said  “the commission has taken the matter in a very serious light and is dealing with the issue as a priority”.

But deputy minister of justice & correctional services John Jeffery said he was “concerned at the amount of time it is taking to complete this investigation.”

Alison Tilley, co-ordinator of Judges Matter, which advocates for transparency in judicial appointments, said: “We are extremely concerned that this magistrate remains on the bench.”