Magistrate gave father who raped his 11-year-old child a suspended sentence
She sent a man who twice raped a 10-year-old girl to prison for just 5 years
Child rapist she freed on suspended sentence rounded up and given 20 years by another court
She let a child rapist walk free, labelled a man convicted of raping his 11-year-old daughter a “loving father”, and allegedly sent a would-be child killer home.
Now KwaZulu-Natal magistrate Kholeka Bodlani — presiding over rape cases in SA’s second-worst sexual offences hotspot, Umlazi — is being investigated by the Magistrates Commission.
The commission has ordered an audit of all the cases she adjudicated since being appointed to the Umlazi magistrate’s court in 2013.
This comes after two review judges slammed her for applying “shockingly inappropriate” sentences in four cases referred to them.
Review judge Mohini Moodley said in a judgment in July that Bodlani’s sentences “have the potential to undermine the administration of justice”.
“They are completely contrary to the factors relevant to sentencing and to the facts of the cases,” she said. “The magistrate seems to have been totally overcome by mercy … she seemed to suddenly lose perspective and sight of the proven facts.”
It is in the interests of justice that the “substantial and glaring irregularities” be corrected by new magistrates tasked with re-sentencing the offenders involved, she said.
The Magistrates Commission investigation, which began after complaints were laid by victims and legal officials, has been tasked with ascertaining why Bodlani let a string of dangerous criminals off the hook or imposed unlawful sentences.
According to review documents seen by the Sunday Times, and interviews conducted with judicial officials, the cases include:
● A father who raped his 11-year-old daughter. Bodlani gave him a wholly suspended five-year sentence. This, she said, was because she “must show mercy on the ‘loving father’ ”.
● Khombokwakhe Mkhize, 53, convicted of twice raping a 10-year-old girl “and exposing her to the risk of contracting HIV”. Bodlani “showed mercy” to him, sentencing him to 10 years’ imprisonment, half of which was suspended;
● An accused charged with the attempted murder of a six-year-old boy who he allegedly stabbed multiple times. Bodlani heard evidence from three medical experts who all testified that the man was fit to stand trial. But after she heard testimony from the man’s relatives, who insisted there was something mentally wrong with him, she found him unfit for trial. And instead of committing him to a mental institution, she allegedly freed him and told him to go home. This case is yet to be reviewed; and
● Convicted child rapist Thabani Dudula, who walked out of court a free man two years ago. Rape of a minor under the age of 16 carries a mandatory life sentence in the absence of exceptional mitigating circumstances, but Bodlani sentenced him to four years in prison, wholly suspended, for the rape of a 15-year-old girl.
The investigation of Bodlani comes in the week that Luyanda Botha, rapist and murderer of student Uyinene Mrwetyana, was handed three life sentences. It also comes just a week before the start of the 16 days of activism campaign for no violence against women and children.
The commission is investigating Bodlani’s conduct in Dudula’s case and at least 16 others, following the scathing criticism by Moodley, backed up by judge Philip Nkosi, who ruled that in Dudula’s and three other child rape cases the sentences were “shockingly inappropriate”, and ordered that the rapists be re-sentenced.
Dudula found himself back in the dock before Durban regional court magistrate Anand Maharaj, who this week gave him a 20-year prison sentence.
Another matter is on the roll for re-sentencing this week, but in the other two cases, the offenders have not been found.
Bodlani is not dealing with any new sexual offence matters since she was removed from that court by acting regional court president Sharon Marks after complaints were laid against her last year.
Bodlani subsequently lodged a grievance against Marks with the Magistrates Commission, claiming she was unfairly “evicted”.
Bodlani did not respond to an e-mailed request for comment, could not be contacted by telephone, and has not been at work since Tuesday.
The commission confirmed this week that it is auditing all the cases she presided over since she took up her post six years ago.
Asked what action would be taken against Bodlani should she be found wanting, commission secretary Mahomed Dawood said it would “consider the matter after finalisation of the investigation”.
He said though Bodlani had been doing the job since 2013, her appointment had not been finalised by the justice & correctional services minister. The ministry was unable to say why this was the case.
Senior court officials told the Sunday Times that so far, 17 of Bodlani’s cases have been identified for judicial review. Moodley in her review said some of the cases were “more disturbing”, and it was in the interests of justice that the “substantial and glaring irregularities” be corrected by new magistrates.
A court official to whom the Sunday Times spoke said the checks and balances in place to ensure good justice had failed. “She should have been under supervision. The clerk of the court is trained to report on any sentences which appear to be contrary to law,” the official said.
“Umlazi is tucked away from prying eyes. The media don’t go there and clearly there has been no proper supervision and people have not been doing what they are supposed to do. No-one complained. And that’s how it happened,” said another official.
The Magistrates Commission reported to parliament that in the past eight years more than 50 magistrates — including chief magistrates and regional court presidents — have been fired for misconduct for offences such as theft, corruption, fraud, murder and sexual assault. Dawood said cases of incompetence are rarely reported to the commission.
Deputy minister of justice & correctional services John Jeffrey said he was aware of Bodlani’s case.
“I have visited the Umlazi court and I have concerns that while the number of sexual offences being reported locally has increased slightly, the number of cases being brought to the court [is] declining,” he said.
According to the most recent crime statistics, Umlazi has the second-highest reported incidence of sexual offences in the country after Inanda, with 301 attacks in 2018/2019.
The magistrate full of mercy for child rapists
She was 11 years old when she was raped by her father and not much older when she had to testify against him in court.
The child told the court how physically painful it was, and how her father threatened to whip her if she told her mom.
But she did tell and she was examined by a doctor the next day.
In her victim impact statement she said: “I was so excited to visit my father that day. I didn’t think anything bad would happen.
“My father did something I will never forget in my life.”
Her words had an impact on magistrate Kholeka Bodlani, who, during sentencing, noted the betrayal of the child by her own father.
But then she inferred that the mother may have been in court to support the accused because she loved him and her daughter.
Although there was no evidence that the man was not sober at the time of the attack, the magistrate inferred that he may have been drunk or drugged, “because the court does not understand what influenced his mind to commit such an offence”.
She said she must have “mercy on a loving father” and sentenced him to five years’ imprisonment wholly suspended for seven years.
In January and February 2011, 53-year-old Khombokwakhe Mkhize twice raped a 10-year-old girl in his hostel room. In her statement the girl said she was looking for a friend when Mkhize approached her, picked her up and took her inside.
“He kicked and threatened me after the rape. He told me he had killed his own children,” the little girl said.
On the second occasion, he grabbed her as she was returning home from the shop. He tied her up with rope and taped her mouth shut.
The rapes had had a visible effect on her, the magistrate said. The child had become mentally unstable and had to be enrolled at a special needs school. She had also been exposed to HIV because Mkhize had not used a condom.
But, said Bodlani, Mkhize’s own children would suffer if he went to prison for life and she “must have mercy on him”. She sentenced him to 10 years in jail, suspending half the sentence.