Court dismisses 3rd bail application for lawyer
MBABANE – The High Court has dismissed a third bail application of the lawyer who is accused of sexually violating his children, helper and cousin.
In his third bail application, * Musa had argued that new circumstances had arisen warranting that he is released on bail. Musa, among other factors, cited the lack of medication at Zakhele Remand Centre, where he is detained.
He said the new factors which had arisen, warranting his release on bail were that he suffered from hypertension and it had become severe, ever since he was detained. He also told the court that he required physical training to manage his illness and that it was impossible to do that while in custody.
Argued
The attorney further argued that he required a special diet of white meat among others, which were not provided by the Correctional Services. He said due to his illness, he did not eat starch and dairy products.
Another factor is that he suffers from asthma and doors at the Correctional facility are closed at 4pm until 7am.
The third bail application was dimissed by Judge Zonke Magagula who found that the alleged new facts were, but embroidery of the old facts and circumstances.
In his judgment, Judge Magagula said: “New facts, I believe, means facts that have not been previously submitted in the proceedings.” He noted that in the first application the applicant (*Musa) had sought to rely inter alia on the allegations that he was of ill-health suffering from asthma and severe hypertension or high blood pressure.
The Crown had responded that by stating that there were unsufficient facilities at the Correctional Services to manage the illness. Judge Magagula said he was unconvinced by the applicant’s contention.
“In the new application, the applicant has again sought to rely on his ill- health and he argued that this constitutes new facts, suffering from the same ailments as before. He has in the new application referred the court to copies of medical certificates,” observed the court.
Judge Magagula highlighted that, in these certificates, although in the usual medical jargon, he was unable to see the words asthma and blood pressure. He said other than that, he was not able to interpret the doctor’s notes.
“I may add that what the applicant has annexed to his papers are not medical reports but hospital or clinic out-patient record. Quite apart from the fact that these records are in the most intelligible, they are helpful and certainly do no assit the court in determining what illness and/or the seriousness thereof. This can only tell me that he was aware of the information and this can hardly constitute ‘new facts’, said Judge Magagula.
During the argument of the bail application, Senior Crown Counsel Mncedis Dlamini told the court that in terms of Section 96 (12), Musa had to prove that exceptional circumstances exist in the matter.
Dlamini argued that the court had previously heard Musa’s bail application and it was now functus officio. Musa’s previous bail applications were dismissed by Judge Magagula and the Supreme Court.
The Crown submitted that the court was functus officio, as it could not review itself on a decision it took earlier on.
According to Dlamini, the contents of the medical report did not suggest anything exceptional, except that he suffers from hypertension.
“Can you then say being asthmatic or suffering from hypertension is an exceptional circumstance? He previously attached medical records of when he had not yet been arrested. He has failed to prove to the court that there are exceptional circumstances,” said Dlamini.
The prosecutor contended that the illness must be such that the Correctional Services could not deal with. He submitted that it was common cause that anyone who was not sleeping in their bed would suffer hypertension. He said this condition was not one of a kind to be classified as an exceptional circumstance.
Dismissed
He applied that since Musa had failed to prove the existence of exceptional circumstances, his application should be dismissed. Musa told the court that he was not responding to medication and doctors said they were investigating why that was the case. Crown argued that it was not enough. Dlamini said at the time of commission of the offences, the survivors were below 14 years of age, making it a fifth schedule offence.
Musa’s representative, Professor Msibi, submitted that the current bail application was different from the previous application for bail his client had filed. These were both dismissed.
“This is a new bail application. It not the same as the previous ones. The application even has new parties,” said Msibi.
Msibi submitted that Dlamini did not point out to the court what had previously been canvassed that was also in the new current application. Msibi said the Crown perceived the application as a re-launch of the previous proceedings. According to Msibi, physical exercise contained Musa’s illness by up to 80 per cent and the rest by the medication he was taking. He alleged that before Musa was arrested, he took one tablet per day and exercised. He alleged that he now took six tablets because he was no longer able to exercise. Msibi submitted that the Crown did not file anything to disprove his assertions.
Allegation
Judge Magagula said the allegation had been substantiated by an expert. In response Msibi told the court that his client found himself in a situation where he could not do anything. He said this was because the doctors who were ordered by the court to provide Musa’s medical records had not complied with order of the court.
He argued that Musa’s illness was fatal and he might not be able to attend his trial.
According to Msibi, approaching the court on new grounds was provided for in law. He said he would argue point on exceptional circumstances when the merits were being dealt with.
He, however, pointed out that most of Musa’s charges were under the Sexual Offences and Domestic Violence (SODV) Act, 2018.
Msibi said, as such, they could not be said to be fifth schedule offences. He alleged that rape under Section 3 of the SODV Act, was not the same as rape as it was described prior to the SODV Act coming into force, which was an offence committed by a man on a woman. Under the SODV Act, rape also includes women committing it on men. Dlamini on the other hand said the submission was misconceived. He said rape under the SODV Act was scheduled as well.
*Not real name to protect survivors.