Rape accused lawyer: Don't be disturbed by charges magnitude

MBABANE – The lawyer who allegedly sexually violated his daughters, cousin and helper says the Supreme Court should not be disturbed by the magnitude of the charges against him.

* Musa was in leg irons and he arrived in court when arguments were already underway. In his heads of argument, the attorney admitted that at a glance the charges appeared to be heinous, which may raise a sense of shock on mere reading of them.

However, he was quick to point out that the presumption of innocence was not a fickle concept and did not depend on the severity of the offences as reflected in the charge sheet.

“We submit that even a serial killer is entitled to the presumption of innocence and the shockwaves that the charge sheet may generate on perusal thereof does not create an exception to the rule that applicant is presumed innocent until proven guilty by credible evidence,” reads his heads of argument.

Musa submitted that the presumption of innocence was enshrined under Section 21 of the Constitution, which provides, in Subsection 2, that a person charged with a criminal offence shall be ( a) presumed to be innocent until proved, or has pleaded, guilty.

Judge Zonke Magagula dismissed Musa’s bail application at the High Court on the basis that the accused knew the complainants and it would be extremely difficult to police any condition preventing communication between him and the witnesses. Musa submitted that the judge made a baseless assumption of fact against him. “There is no evidence brought before court which supported such a finding, suspicion, assertion whatsoever, and this is mere surmise and wild conjecture by the learned judge a quo. “There is no psychological opinion or evidence which suggests that a person in the position of the appellant could be more prone to skipping the country, change his domicile and wish to begin a new life in a foreign country,” he said.

He submitted that his children were removed from his homestead by a court order five months before his arrest. They have been kept in a shelter run by government up to date, he said. Musa said he had ample time to interfere with the children when he stayed with them.

Incidents

He told the court that it was apparent that the children reported the alleged incidents when appellant was still residing at his parental homestead. He said he had ample time to interfere with the children not to report the alleged sexual acts as reflected in the charge sheet.

“The fact that these cases against appellant were reported while the children were residing with him speaks to his willingness ( certainly not inability) to interfere with them from making the report.

“The children were free to report a case against the appellant when they were residing with the appellant with no court order in place interdicting the interference.”

Musa is represented by Khumbulani Msibi of Dlamini Kunene Associated. The Crown, on the other hand, submitted that Section 21( 2)( a) of the Constitution, which provides that a person charged with a criminal offence shall be presumed innocent until proved or has pleaded guilty, should be read together with Section 21( 13)( a) of the Constitution. This section provides that nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of Subsection 2( a) – to the extent that the law in question imposes upon any person charged with a criminal offence the burden to prove particular facts.

The Crown, which was represented by Crown Counsel Bhekiwe Ngwenya, submitted that Section 38 does not include the right to personal liberty. Section 38 lists rights and freedoms which there shall be no derogation from their enjoyment.

Ngwenya argued that the likelihood that Musa would evade trial was high, considering the fact that the charges against him carry long custodial sentences if found guilty.

“He further knows that the evidence against him is overwhelming and he will not wait to take his chances in court if released on bail,” Ngwenya told the court. On Musa’s argument that the High Court treated the concept of his release on bail as some kind of anticipatory punishment guided by the severity of the contents of the charge sheet, the Crown argued otherwise.

Ngwenya stated that a court, in exercising its discretion, could either admit the applicant to bail or refuse bail, and that the discretion had not been taken away by the Constitution. He said the court had to, at all material times, make a determination whether the interest of justice would be served with the applicant in custody or outside.

In this case, said Ngwenya, the court made a finding that the interest of society would be served with the applicant in custody, especially because he had a close relationship with the Crown witnesses.

The matter was heard by Judges Stanley Maphalala, Nkululeko Hlophe and Mbutfo Mamba. The court reserved its judgment.

* Name withheld for ethical reasons.