Rape Cover-up Trial: Defense Alleges Police Officers Are Being Maliciously Prosecuted

• Defence attorneys cross-examined witnesses on Wednesday in the trial of three police officers accused of covering up a rape.
• Attorney Clint Short alleged there was a hidden agenda against the offices of the Family Violence, Child Protection and Sexual Offences unit, and that his clients were being maliciously prosecuted.
• The rape victim had been held in a cell near where her rapist was being held, and initially claims she was intimidated into dropping charges.

Cross-examination resumed at the Durban Magistrates Court on Wednesday in the trial involving three police officers alleged to have been involved in covering up a rape.

The case involves “Q” (a name assigned by GroundUp to the victim who is in witness protection), who was raped at knife-point in The Bluff in March 2023.

Three police officers attached to the Family Violence, Child Protection and Sexual Offences (FCS) unit based at the Brighton Beach Police Station in Durban are on trial. Gugulethu Buthelezi is charged with defeating the course of justice, while Phila Xulu and Sanele Zuma are charged with intimidation.

Q has alleged that although she knew her attacker to be Zwelakhe Mashaba, the FCS officers failed to arrest him and intimidated her into dropping charges. Mashaba was temporarily detained, but then released.

Mashaba was later found guilty and, in February last year, was sentenced to ten years in prison.

In September last year, Independent Police Investigative Directorate (IPID) member Michael Viljoen told the court that the accused officers picked up Q and her attacker several weeks after the incident, using the same vehicle, and took them to Brighton Beach Police Station.

Viljoen said the accused held Q in a holding cell, while her rapist was handcuffed to the bars outside the cell. The two were left unattended. They were then both detained in the same block of cells, which Viljoen said was against police code.

Mashaba was later released on a 328 form, which is used when there is insufficient evidence, despite there being a J88 form (filled out by a medication practitioner in assault cases) detailing Q’s injuries from the assault.

Viljoen also told the court that in the CCTV footage he had seen, Xulu exhibited intimidating body language. He also said that during IPID’s investigations, Xulu spoke negatively of Viljoen in isiZulu.

On Wednesday, Viljoen was cross-examined by advocate Andile Makhwanazi, who represents Xulu. Makhwanazi questioned Viljoen’s professional qualification to read body language and his comprehension of isiZulu. Viljoen acknowledged that his isiZulu was at a basic conversational level.

Senior Public Prosecutor Sphelele Ndlela was also cross-examined. Ndlela had previously submitted that the “many injustices” in Q’s rape docket led her to determine that law enforcement had failed Q in her pursuit of justice.

Defence lawyer Clint Short, representing Buthelezi and Zuma, cross-examined her, arguing that the police officers had rightfully used their discretion to release Mashaba with a 328 form.

Ndlela pushed back, arguing that because the charges were for a Schedule 6 serious crime, the decision to release Mashaba was inappropriate and should have been made only after consultation with oversight bodies.

Short then alleged that his clients were being maliciously prosecuted and that their prosecution was part of an agenda among general police units to sabotage the FCS, which is a specialised police unit.

Short also submitted that the encounter between Q and Mashaba may have been consensual. The J88 form showed only that there had been penetration and did not show evidence of rape. Short said he would address evidence of physical assault on the form at a later stage.

Short alleged that Q was intoxicated, and that this complicated the case.

The matter returns to court on Thursday.

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