'Licence to rape' ruling sparks rage

A magistrate who berated a child rapist he was sentencing with a reference to sexual assaults in prison has provoked the ire of the justice authorities and civil society organisations, and he faces the possibility of impeachment.

Remarks made by Herman Badenhorst, a relief magistrate at the Krugersdorp Magistrate's Court, have been slammed as "totally outrageous" and "quite disturbing".

Handing down a 28-year prison term on Monday, Badenhorst told Neo Molaudzi: "In prison you can rape prisoners if you feel like it; at least you won't be around little children." Molaudzi, 22, had been convicted of raping a 13-year-old boy.

Yesterday the Magistrates' Commission said Badenhorst's conduct would be examined.

Badenhorst could not be reached for comment at the magistrate's court.

The c ommission's secretary, Danie Schoeman, said the matter had been referred to the commission's ethics division .

"A copy of the judgment, including the court transcript, will be obtained," said Schoeman.

The South African director of Just Detention International, Sasha Gear, said Badenhorst's remarks were "totally outrageous".

"For an [officer] of any court or legal system to say this is disturbing and contributes to the belief that it's fine for prisoners to be raped. All role-players in our criminal justice system should condemn this," said Gear.

Prison rights activist Golden Miles Bhudu said Badenhorst's remarks could fuel rape in prisons.

Bhudu said that if former Hawks spokesman MacIntosh Polela could be fired for implying that Jub Jub Maarohanye should be raped in prison, harsher measures should be taken against Badenhorst.

Polela, expressing his views on Twitter after Maar ohanye had been found guilty of murder, said in October that the singer's supporters should give him a jar of Vaseline to take to prison.

Bhudu said: "This magistrate needs to be called to order, to clarify what he meant.

"He must be made to understand that people [with his attitude] are not welcome on the bench.''

Research into prison rape in 2007 by the Judicial Inspectorate for Correctional Services found that almost half of 750 prisoners reported being victims of sexual abuse "sometimes", "often" or "very often".

Seven percent of prisoners had received unwanted sexual advances and a quarter said sexual violence occurred "frequently".

James Selfe, the DA spokesman on prisons, said the party would complain to the Magistrates' Commission.

"Far from encouraging people to rape, they should be clamping down on it," said Selfe.

He said a sanction against Badenhorst could range from his being ordered to withdraw his comments to being fired.

"I've asked the Magistrates' Commission [to order] him to withdraw those remarks," said Selfe.

Justice Ministry spokesman Mthunzi Mhaga said Badenhorst's remarks were "quite disturbing", coming from a judicial officer.

"Prisons are supposed to rehabilitate offenders, not encourage them to commit crime," he said.

This is not the first time that Badenhorst has made a controversial statement from the bench.

In August 2010, after handing down a suspended sentence to a Soweto mother for abandoning her two small children, Badenhorst told Nomfundo Shabangu: "You have to look after your children, or don't have them at all ... If you can't look after your children, then I'm sure you're clever enough to know about contraceptives."

Shabangu was given a suspended sentence for leaving her three-month-old baby, and her one-year-old, alone in her Kliptown, Soweto, shack while she was shopping.