We postponed sex – rape accused mechanic

MBABANE – A motor mechanic, who was arrested for alleged sexual intercourse with a 14-year-old minor, says they deferred sex until she turns 18.

Phiwokuhle Mnyangowezindlu Lukhele (24) said there was nothing criminal about their relationship.

He said the law did not prohibit a love relationship where sex was deferred until a particular period. He alleged that he and the minor did not even kiss.

Lukhele argued that the Sexual Offences and Domestic Violence (SODV) Act 15/2018 did not prohibit their type of relationship.

The accused person, who was employed by the minor’s parents, has been charged under the SODV Act. According to the charge sheet, he committed the offence in September 2022 at Manzana in the Lubombo Region.

Appreciate

He is alleged to have had unlawful sexual intercourse with the minor who, in law, has no capacity to appreciate the nature of a sexual act.

The offence is accompanied by aggravating factors in that the accused person exposed the minor to sexually transmitted illnesses (STIs).

He is said to have taken advantage of the vulnerability of the minor as she was not in the immediate supervision or care and custody of an elderly person. Another factor is that the accused person betrayed the trust of the minor’s parents as he was under their employ.

In his application for bail at the High Court, Lukhele informed the court that he would plead not guilty to the offence. He told the court that he did not commit the offence he has been charged with.

“I did not commit the alleged rape at all and I never committed the actus reus (action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused) of unlawful and forcible carnal connection with the complainant,” said Lukhele.

He narrated to the court that he and the minor agreed to be in a love relationship and committed to having no sexual intercourse until she turned 18 years old.

Lukhele disputed that the complainant was 14 years old as stated in the charge sheet. He claimed that she informed him that she was 17 years old when they allegedly fell in love.

“We agreed to wait until her 18th birthday and we had not broken our undertaking,” Lukhele added.

Defer

The accused person said he had been advised that being in a love relationship, yet defer sexual intercourse, was not criminal in terms of the law. “Seeing one another as lovers is not criminal in so far as there is no sexual intercourse between the two. This type of friendship, with postponed sex, is not prohibited at all. I did not even kiss her, despite that such is not prohibited as it is not defined anywhere in the Act as a sexual act,” said Lukhele.

He informed the court that he was fully aware that a charge under Section 3 of the SODV Act attracted strict liability. He said one had to prove that the actus reus actually happened beyond reasonable doubt, ‘which I deny in the strongest possible terms’.

The accused person said he was employed as a motor mechanic at Siphofaneni. He implored the court to grant his bail application. He submitted that he had orders from his clients, who had paid deposit amounts, when he was arrested.

According to Lukhele, he wished to be released from custody in order to take care of his family and service his contracts with clients.

He, however, told the court that he could not afford to pay E15 000 as bail. He said he earned about E2 000 per month, which he used to cater for his family. Lukhele submitted that he cooperated with the police during their investigation. His bail application was heard by Judge Ticheme Dlamini yesterday. The judge granted the application and fixed his bail amount at E15 000.

He was ordered him to pay E3 000 in cash and provide surety for the balance. Lukhele was represented by Khumbulani Msibi of Dlamini Kunene Associated.