... vehemently denies committing any rape
MBABANE – “I did not commit the multiple rapes at all.” This is according to the lawyer who was arrested for allegedly raping his own children and a helper. He was emphatic in denying that he committed the offences.
After his arrest on Thursday, *Sam (54) appeared at the Manzini Magistrates Court yesterday and was remanded in custody. He filed an urgent bail application at the High Court yesterday. The Crown is opposing the lawyer’s bail application.
In his papers, Sam informed the court that he intended to plead not guilty when the charges were read to him. He said his major defence to all his four charges (one of the initial five charges was withdrawn at the magistrates court) was actus reus, which was a major component of the crimes he had been charged with.
Actus reus means an action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused.
Sam, who is represented by Khumbulani Msibi of Dlamini Kunene Associated, told the court that his children, who are the complaints in the matter, were persuaded by his enemies to act maliciously against him. “I do state that they have been unduly influenced to fabricate evidence against me and this will be shown during the trial when the matter gets to be heard,” said Sam.
He further submitted that he was a law abiding citizen and was fully aware of common law rape and the Sexual Offences and
Domestic Violence (SODV) Act of 2018 and all its consequences. “I deny as a fact having any sexual relations with any of the complainants reflected on the charge sheet,” he submitted.
The accused person went on to tell the court that he was aware that Section 3 of the SODV Act attracted strict liability. However, he said one had to still prove that the actus reus actually happened beyond reasonable doubt, ‘which I deny in the strongest possible terms’. He further said he was aware that the charges of rape at common law still attracted all the defences that were recognised under common law.
conseQuences
Sam submitted that he was an admitted attorney of the High Court and he knew the consequences of evading trial as well as interfering with Crown witnesses. “In any event, the Crown witnesses were removed from my custody and there is no such possibility that I may interfere with them while they are sheltered by the government. Should these children be released to me, I am prepared to relocate from my home to reside in Manzini or Mbabane to avoid any such possibility or temptation to influence them against the Crown’s case,” the attorney said.
He further denied that he was a flight risk. According to Sam, he did not harbour any desire to leave the country for any reason at all to evade trial. He mentioned that in the past, he was arrested on two occasions in 2008 for one of the crimes he had been charged with once again, but he never opted to leave the country.
Sam submitted that he there was a lot of talk about the matter in the past and ‘the publicity attracted could have persuaded a weak mind to evade trial, but despite all that I chose to stick to the law and abide by all bail conditions’.
He informed the court that he was once again arrested in 2015 for fraud or theft under false pretences and was granted bail. He said was still abiding by those bail conditions. “I have never even tried to leave the jurisdiction of this court. I have never even tried to seek employment elsewhere outside the country. Both these cases are still pending unless the Crown wishes to abandon them, otherwise I am ready to face them too with no possibility of running away,” he said.
Regarding the current arrest, Sam stated that the matter was discussed at length at the Social Welfare Department way before he was arrested. Sam said he engaged on it with the police who were investigating the matter.
He told the court that his children were taken away from him some months ago and he had always been aware of the investigation against him and the imminent arrest, but he deliberately and willingly chose to stay at home to face the charges.
“I must confess at this stage that I received a lot of ‘friendly advice’ from different people suggesting to me to relocate to South Africa or Mozambique, but I never took such advice and told them point blank that I am not going anywhere. Thus I refute any possible projection and/or assumption by the Crown that I might be a flight risk,” he added.
He also submitted that as an admitted attorney, he had a lot of pending cases which required his attention. He said some of his clients were in custody and others were out of custody. Sam said some of his clients had paid him deposits and they would be prejudiced by his continued incarceration.
teMptation
Concerning bail, Sam submitted that it was meant to give practical effect to the presumption of innocence. He said the temptation to use bail as an anticipatory punishment by determining the bail amount to be commensurate with the magnitude of the charges against an accused person remained a misguided approach.
He said in his understanding, the severity of the allegations on the charge sheet levelled against him should not influence the bail amount and the decision to release him on bail. The lawyer said he could not afford to pay E50 000 bail. He pleaded with the court to consider the economic meltdown due to COVID-19. He said he could afford to pay E3 000 in cash and provide surety in value of E47 000.
Sam further said he cooperated with the police during the investigation and that he did not object to the taking of blood samples from him allegedly in the absence of a court order. He said he had good prospects of success during the trial. The accused person, on another note, told the court that he was sickly and experienced complications on Thursday such that he had to be taken to Good Shepherd Catholic Hospital.
He said his sickness was triggered by stress-related issues.
When the bail application was heard yesterday, the Crown indicated that it was opposed to the lawyer’s release.
Crown Counsel Brian Ngwenya filed a notice of intention to oppose and the Crown will file its reasons for opposing the application on Tuesday. Sam will file a replying affidavit the following day and the matter will be argued next Friday before Judge Zonke Magagula.