SA has no jurisdiction – accused
Location of ship may stymie boat-trip rape trial
A DURBAN man claims SA courts cannot try him for an alleged cruise ship rape because the incident happened in international waters.
In a sensational twist to the headline-grabbing case involving the cruise ship, the MSC Sinfonia, lawyers for Pinetown resident Sindhu Ramanandh Bhogal say he doesn’t have a case to answer.
Bhogal, a married father of one, appeared in the Durban Magistrate’s Court on Thursday to face charges of raping a Gauteng woman Anika Marks.
She says he raped her aboard the ship on November 28, 2009, after allegedly spiking her drink. She has agreed to be named, saying this could encourage other women who have been raped to take action.
After two years of legal arguments, the case rests on whether the State’s legal team has jurisdiction to continue with the prosecution.
Marks, who was on the cruise with colleagues, said she woke two hours after the alleged rape and accompanied her colleagues to Portuguese Islands. She confided in a close friend, but reported the matter to the ship’s manager only later, a day before the ship was due to dock at Durban harbour. Bhogal has denied the charge, and is out on R1 000 bail.
Ken Mcintosh, for Bhogal, cited Section 61 of the Criminal Procedures Act, and said as the alleged crime occurred in international waters, the court could not proceed with the matter. He referred to other cases where the courts had no jurisdiction.
He said his legal assistants had gone to great lengths to confirm the whereabouts of the ship at the time of the alleged rape, and had obtained a statement from the ship’s captain stating that the vessel was not in SA waters.
Mcintosh said as the State had no authority, his client should be discharged.
Senior state prosecutor Vaneshree Moodley conceded that the case was an unusual one, but argued that the matter should go ahead.
She argued that the alleged rape took place the night the ship sailed from Durban.
In an interview with Weekend Argus’s sister newspaper, Durban’s Sunday Tribune Herald last year, Marks said she had decided to reveal her iden- tity in an effort to encourage rape victims to come forward. “When someone is raped the first feeling is shame. That is exactly where we women are wrong. He violated you.”
She was on board the ship as part of a business trip, a threeday cruise with 40 colleagues.
In her testimony, Marks said she had been dancing in the Pasha Disco and then went up on deck alone to have a cigarette. Bhogal was on deck and they struck up a conversation.
She said he told her his wife and child were sleeping in their cabin. “I told him my husband had died in 2008. A few minutes later I told him I needed to use the toilet and left my cider and packet of cigarettes on the deck next to him. When I returned minutes later he offered me a few drags of his cigarette.
Marks said her mouth immediately began to feel dry and Bhogal offered her her drink. She felt as though her head and body were not functioning, and then remembered walking down the stairs with Bhogal behind her.
The next next thing she remembered was Bhogal on top on her, with her dress up and underwear off. She screamed for help but Bhogal held her down. Afterwards he left her on the wet wooden deck before buttoning his jeans and leaving. She said she went to her cabin where she showered and slept. She was too scared to tell anyone. Bhogal told the court he was holidaying with his wife, Sherissa, his four-yearold daughter and extended family, and had not spoken specifically to the complainant.
He denied having lit a cigarette for her “and I did not watch over her drink. We were not on that level of friendship”.
The case was postponed to February next year.
NOT PLAIN SAILING: The MSC Sinfonia in Cape Town harbour.