Child victims’ case cries out for Victims Fund

No case illustrates better the pressing need for a fund specifically to compensate and assist victims of crime than that of nine township children, allegedly sexually abused by German immigrant Werner Braun.

Braun fled the country via Namibia at the end of 2005 when police investigations got too hot for him, leaving behind a house valued at R3,7 Million and a BMW X5 worth a couple of hundred thousand rands. These have since been attached and preserved by the National Prosecuting Authority (NPA) as instruments of crime in terms of the Prevention of Organised Crime Act (POCA) — both were used by Braun for his sexual acts with the children. Six cases in terms of the Sexual Offenses Act involving sex with the nine under age children from Khayelitsha and Macassar are pending. The children have no legal representation and their only status thus far before the courts is as complainants.

Should the attachment of Braun’s assets worth over R4 Million be made final, they will go into the Criminal Assets Recovery Account (CARA). Although the funds in the account can be applied for victims of crime thus far a paltry R3,5 million out of approximately R200 million deposited in CARA so far has been allocated for this purpose, and then only through a transfer to the Department of Social Development. There is no information as to what it was used for.

The Democratic Alliance (DA) has over the past seven years repeatedly attempted to establish a fund for victims of crime, to be funded by the proceeds of crime garnered through POCA, thus far to no avail. We have handed in no less than three Private Members’ Bills establishing such a fund — the latest in 2006 — but none has yet been pursued by Parliament or government.

Significantly, the South African Law Reform Commission completed its report on establishing a compensation fund for victims of crime in 2004. The report, which was sent to the Minister of Justice, Brigitte Mabandla, that year called for a fund to be established to develop services for victims.

Repeated attempts by the DA and other parties to persuade the minister to release the report or give access to it have failed. Presumably Mabandla is unsure as to what to do with it. What is very clear is that if the nine child sexual assault victims could have access to the Braun assets once forfeited to the state, they would be able to employ a lawyer or lawyers to act for them in any damages claim they might have against Braun and his estate for his illegal actions.

It is not that there is no precedent internationally for this. In Canada, Australia, New Zealand, and even the United States and the United Kingdom, the civil claims of victims of crime against the forfeited assets of the perpetrator are beginning to be acknowledged.

In South Africa’s courts the principle that the proceeds of crime confiscated by the NPA and paid into CARA can be used to pay back material goods, such as money on shares stolen from victims, has been accepted and applied.

In the case of the nine child sexual assault victims it might be difficult to quantify their damages, but if they were able to access the forfeited Braun assets they would be in a position at least to retain a lawyer to look after their interests. As it is, they are all dirt poor, powerless and without legal representation, victims of beastly crimes who will probably land up on the scrap heap of South Africa’s legal system.

Child Protection Week started on the 26 May 2008. It is time again for the DA to repeat its calls for a Fund for Victims of Crime that would make all the difference in enabling victims such as these nine children to secure their rights.