SA has no ju­ris­dic­tion – ac­cused

Lo­ca­tion of ship may stymie boat-trip rape trial

Weekend Argus (Saturday Edition) - - NEWS - ARTHI SANPATH

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.

PIC­TURE: BREN­TON GEACH

NOT PLAIN SAIL­ING: The MSC Sin­fo­nia in Cape Town har­bour.

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