Justice for a teen who was allegedly repeatedly raped over several months by three neighbours is hanging in the balance because of an almost two-year delay in crucial DNA tests.
The long-awaited result of the tests will establish who made the schoolgirl pregnant, as it was conducted on a foetus following an abortion.
It could prove, without doubt, the guilt of one of the men she alleges repeatedly raped her when she was 14.
The men - who lived in the same neighbourhood as her - allegedly threatened to harm the girl's mother and younger brother if the teen refused them sex.
The men have appeared in the Randburg magistrate's court in Johannesburg nine times, without pleading to the charges, since the sample was sent for testing in October 2019. They are due back in court next month.
However, attorney Neale Quilliam, who was appointed to monitor the case by a US benefactor who has an interest in it, said that because of the repeated delays, it is possible that the matter will have to be set down for trial with or without the DNA results. This could severely jeopardise the state's case.
The teen's case is one of 208,000 affected by a DNA testing backlog at police labs. Experts warn that this is severely impacting on justice, especially for victims of gender-based violence, who often rely on DNA evidence.
Quilliam said the rape charges came about after the teen was "roughed up" by one of the men, and admitted to hospital. It was discovered that she was pregnant and a decision was taken to terminate the pregnancy.
National Prosecuting Authority (NPA) spokesperson Phindi Mjonondwane confirmed the matter is on the court roll and that the DNA test result is outstanding.
She said the NPA has intervened to prioritise DNA results, which are now "rapidly" coming in - and the state "will remand the matter until we receive the results".
But that is cold comfort for the schoolgirl.
In WhatsApp messages, her mother said that her daughter, now 16, had been terrified that her alleged rapists would be granted bail. Now, she said, the delay in the trial is having a severe emotional and psychological effect on her.
"She is not herself, but she is trying to be strong. I wish I could take this burden from her," said her mother.
The teen's case is one of 208,000 affected by a DNA testing backlog at police labs
"I believe that if she does not get justice she will be shattered."
The mother said that her daughter at times harmed herself by scratching herself and jabbing herself with a small bread knife.
"She has no friends now. She is sometimes violent to her younger brother. She doesn't want to talk about it ... I live in fear that the worst might happen."
The three suspects will only plead to the charge of rape once all evidence is in and the case is ready for trial. Until then they cannot be named for legal reasons.
Quilliam, of BDK Attorneys, was appointed as a watching brief on the instructions of a US benefactor who met the family while doing community work in SA. The Sunday Times has spoken to the benefactor, who does not want to be named.
Quilliam said the three men have been in custody since October 2019, after being refused bail. They are all charged with rape.
Quilliam said the victim's rights to a speedy trial are being infringed.
"We wanted to establish which of the men fathered the child because then, given that the victim was aged 14 at the time, according to our law, she could not give informed consent. The case would have been extremely strong against him."
He said he had visited the laboratory in an attempt to find out what was going on, but had been barred access.
"I also sent a letter of demand to the head of the laboratory in an attempt to speed up the result, but I was ignored.
"There have been all sorts of excuses, including that they have not got a certain chemical needed in the testing process, and that there is no service-level agreement with private laboratories to take on the work."
The US benefactor said: "The backlog in processing DNA is a huge human rights violation. In a country like South Africa, rife with gender-based violence, this is a further assault against women and girls.
"This young girl in particular deserves justice, but instead is being held in limbo while suffering greatly. She is unable to exercise her full potential or live the thriving and fulfilling life that every child is due. I'm invested for her in particular, but for all women and girls whose lives hang in the balance because of this issue," she said.
Last month, police minister Bheki Cele said there was a backlog of more than 208,000 cases at police forensic labs. This includes 77,000 gender-based violence and femicide cases which are otherwise court-ready. These have been prioritised, he said.
Cele said there is a turnaround plan, and he hoped the system would be functioning normally within 18 months.
This week, police spokesperson Brig Vish Naidoo said the forensic exhibit management system track-and-trace programme is now up and running and about 10-million samples have been loaded onto it.
However, he said, there is a bottleneck in testing because of a shortage of kits. "A two-year contract with a service provider to supply these kits is being finalised."
Mark Rogers, director of the DNA Board Secretariat, which plays an oversight role, said it is concerned about the backlog, "as this represents victims of crime who continue to be denied justice".
"This situation cannot be allowed to continue unabated. Of particular concern is the impact on victims of gender-based violence, and the impact of these delays on our court system."
He said the challenges are a result of inadequate demand planning and ineffective supply chain management.
There have been all sorts of excuses, including that they have not got a certain chemical needed in the testing process
— Attorney Neale Quilliam,
"This has resulted in crippling shortages of reagents and consumables needed for DNA analysis. Contract management challenges have resulted in critical equipment not being maintained or calibrated, further adding to the backlog.
"Covid-19 has also impacted negatively on the operations of the laboratory through closure and rotation of staff."
DNA for Africa regional director Vanessa Lynch said a line has to be drawn to ensure accountability from the South African Police Service and police ministry.
"We constantly get told about what is being done, but what we need to see is action.
"Cele told parliament they have implemented a turnaround strategy, which includes R250m worth of funding released in November, the appointment of a new divisional commissioner, the promotion of 127 people to critical posts and the awarding of tenders for consumable supplies to process DNA samples, among other steps.
"What we now need is actual accountability and transparency. We need a publicly accessible dashboard, which shows what the police are doing on a daily basis to address the backlog."
Debbie Wybrow, founder of child rights advocacy foundation Bayakhanya NPC, said: "We fail our children when we allow our systems to fail ... these DNA delays are unacceptable and compound the trauma these children have already experienced."
- Additional reporting by Graeme Hosken
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