Judge Zione Ntaba was dealing with a review in a bizarre case in which a magistrate, apparently colluding with an accused in a rape case, ordered a “demonstration” to ascertain if the accused could get an erection. 

This took place in chambers in front of the 17-year-old rape victim and involved the participation of another woman who apparently volunteered to attempt to sexually arouse the accused.

The matter came before Judge Ntaba after the victim’s mother complained to another judge about the magistrate’s behaviour. The judge ordered that the magistrate’s conduct be reported to the Judicial Services Commission and the trial begin afresh before another magistrate.

The alleged rape took place in June 2021, the 22-year-old accused was arrested five days later and the trial began soon afterwards.

After the state concluded its case, the matter was adjourned for about a week. In his notes, the magistrate wrote at that time “the court would like to find means to see if he can have an erection” and that a woman stood up to volunteer her services.

When the case recommenced, the accused mentioned his inability to get an erection and asked that the girl who volunteered show the court “his problem”. A week later the demonstration took place in the magistrate’s chambers, after which the matter was adjourned for judgement.

Judge Ntaba said according to the rules of criminal procedure, such a defence should have been raised through expert medical evidence and any such demonstration should not have taken place in front of the victim.

What occurred was highly illegal “and this court was at pains to understand what could have prompted the magistrate to take this pervasive root to allow such a gross display” which, she said, seemed to have been introduced “out of the blue”.

“A careful perusal of the record shows that it was raised by the magistrate,” she said, concluding that there might have been discussions outside of court in the absence of the prosecutor.

“It was possible that the magistrate and the accused colluded and decided to circumvent the course of justice by putting forward this lewd act. This court could also conclude that this was because the magistrate had an underlying bias in that he did not believe the victim’s testimony stemming from underlying stereotypes,” Judge Ntaba said. 

“Stereotypes have a negative impact on justice,” she noted, adding that judicial decisions and judges who made them had to be impartial and devoid of bias. “There was no need for the magistrate to come to the aid of the accused.”

The judge said the issue of bias and gender stereotyping had been raised by the UN Special Rapporteur who had remarked that it particularly affected access to justice and equality for women, and discriminatory treatment of victims of sexual offences. She said while she could not find as a fact that there had been any corruption, there had been blatant bias.

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