Johannesburg – There has been a new twist in the matter in which convicted rapist brothers Marinus and Morné Kemp remain free men with the National Prosecuting Authority (NPA) revealing that “they have an understanding with their defence counsel”.
AfriForum’s Private Prosecution Unit, which is pursuing the matter on behalf of the rape survivor – who was only 14 years old at the time of the assault and her mother, said the Pretoria High Court cancelled the brothers’ bail when their appeal failed.
“The NPA has confirmed to AfriForum’s Private Prosecution Unit that convicted child rapists, Marinus and Morné Kemp, remain free men despite the Pretoria High Court cancelling their bail, because of an understanding with their defence counsel,” spokesperson Barry Bateman.
“The NPA further confirmed that a date for the brothers’ bail application has not been set, which raises further questions because prosecutors do not have the discretion to usurp the courts and disregard court orders.”
Bateman said in follow-up correspondence, the unit asked the NPA to clarify whether such “special treatment” was limited to the case of the Kemp brothers or whether there were many such cases where appellants who have been convicted of serious offences have not been arrested because of informal arrangements with the authorities.
“We are concerned that either these appellants received preferential treatment, or it has become the practice of your office, and there are more such instances where unsuccessful appellants are granted similar concessions,” Advocate Gerrie Nel, head of the unit, wrote in his follow-up correspondence to the NPA.
In October 2022, the Pretoria Magistrate’s Court convicted the Kemp brothers for the 2018 rape of a 14-year-old girl.
The court sentenced Morné to a 25-year prison sentence and Marinus to 20 years.
They immediately appealed their conviction and have been on bail since then.
However, on 30 October 2024, the Pretoria High Court dismissed the Kemp brothers’ appeal and revoked their bail.
The court ordered the brothers to surrender themselves within seven days to the investigating officer or report to the Pretoria North Police Station to be arrested and start serving their sentence.
But that did not happen.
After learning that the daughter’s convicted rapists had not been arrested, despite their unsuccessful appeal, the distraught mother approached the unit to pursue the matter.
Bateman said: “The mother was unable to obtain clear answers from the authorities and remains concerned because the two men live in her neighbourhood”.
The NPA told the unit that it would be “male fide or malicious” if the state arrested the Kemp brothers pending a decision by a court to grant them bail.
In the latest letter to the NPA, Advocate Nel wrote: “Our view is unwavering that it is neither male fides nor malicious for the state to act in accordance with the rule of law and to uphold the values of an organisation which is duty-bound to act without fear, favour or prejudice.
“Conversely, the state will act male fides when the interests of convicted criminals are elevated above those of society and their victims who are left with no explanation for why the assailants remain free.
“It begs the question: in whose interest is the state acting, if not society’s and the victims of crime?
“While your office indicates that it has been in contact with various role-players in this matter, notably absent is any effort to keep the victim and her family abreast of all these developments.
“As indicated in our previous correspondence, the complainant lives in fear and uncertainty because her attackers remain free.
“When was she going to be told about the extensive arrangements being made by your office?”
In a letter seen by The Bulrushes, the NPA tells the unit: “Kindly note that this office was also provided with proof that the application for leave to appeal was served on the Supreme Court of Appeal (SCA), on 6 November 2024, two days before the appellants had to surrender.
“The state advocate who dealt with the appeal was consulted and indicated that she will not be opposing bail.”
The letter continues: “The investigating officer has, in the interim been approached with a request to follow up whether the appellants adhered to the bail conditions whilst being on bail pending the appeal.
“This information is still awaited.
“In the interim, it has been decided to re-allocate the bail application to Advocate Cronje from this office.
“A date for the hearing of the bail application is still awaited and will be arranged with Judge Mosopa as a matter of urgency, obviously depending on availability. He is aware of the matter.
“In view of the factors mentioned above, having the appellants arrested, in the circumstances set out above, the State’s actions would be mala fide or malicious.”
Bateman said the case of the Kemp brothers follows the recent Human Sciences Research Council study on gender-based violence.
The research found, among the reasons, that gender-based violence (GBV) crimes were not reported due to a “lack of trust in authorities tasked to respond to GBV”.
Regrettably, the case of the Kemp brothers provides the public with ample reason to distrust the authorities, lamented Bateman.
