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NO BAIL FOR CHILDREN’S RAPE ACCUSED LAWYER

15/10/2022 07:33:00 Kwanele Dlamini and Mbongiseni Ndzimandze

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MBABANE – One of the reasons the High Court did not release the lawyer who sexually violated his children, their cousin and helper is that he knows the complainants and is likely to interfere with them.

The lawyer has been in custody for 24 days. He was arrested on September 21, 2022. His application for bail was dismissed yesterday by Judge Zonke Magagula. The accused person’s attorney, Khumbulani Msibi of Dlamini Kunene Associated, said he was not in a position to state whether his client would appeal the judgment as he was still to take instructions from him. The accused’s lawyer was not present in court when the judgment was delivered. He is facing three counts of rape and two of contravening the Sexual Offences and Domestic Violence Act 15/2018.

The rape charges, according to the prosecution, are accompanied by aggravating factors in that the complainants are minors; the youngest being 12 years old and eldest 14 years old. The lawyer is the biological father of the minors who are complainants in the first to the fourth counts. Two of the minors, according to the prosecution, fell pregnant and were exposed to HIV/AIDS infection.

Related

Judge Magagula said the complainants in all the charges were related to the lawyer. The prosecution, which was represented by Crown Counsel Brian Ngwenya, contended that its witnesses were related and, therefore, were well-known to the accused person. This, according to the judge, made it highly likely that he would tamper with them. The lawyer, in response to this submissions, said he was a law abiding citizen and he did not know the witnesses of the Crown or that they were related to him. The judge said the complainants and witnesses were all known to the lawyer.

“It would be extremely difficult, if not impossible, to police any condition preventing communication between the applicant and the witnesses. “I may add that the gravity of the offences and the possible sanction or penalty, should they be proved at trial, are such as would encourage the applicant not to stand trial,” said Judge Magagula. In another reason for dismissing the lawyer’s bail application, Judge Magagula said the accused person did not adduce evidence to convince the court that there was something unusual in his particular circumstances.

This was in relation to the lawyer’s argument that he was sickly. He also told the court that he cooperated with the police throughout the investigation. The Crown did not dispute his medical condition but argued that the available facilities at His Majesty’s Correctional Services were adequate to address his medical issues. The prosecution also stated that the lawyer was entitled to be attended to by his own doctor at his cost. The court was also informed that soon after his arrest, the lawyer was taken to Good Shepherd Catholic Hospital, which was testament that he could get adequate medical attention while incarcerated.

Judge Magagula said it was not too difficult to understand why the legislature enacted a law to protect human life and dignity. He cited a case in which Judge Bheki Maphalala, during his time as a judge of the High Court, in the criminal matter between Wonder Dlamini and another, referred to Section 96 (12) (a) of the Criminal Procedure and Evidence Act of 1938.

Exceptional

Judge Maphalala said the section made it clear that a bail application in respect of a schedule five offence bears a formal onus to satisfy the court that exceptional circumstances exist which, in the interest of justice, permits his release. Judge Maphalala also said at the time that the applicant discharged the onus by adducing the requisite evidence failing which his detention in custody continues pending finalisation of the trial.

He also said the word ‘exceptional’, in relation to bail, must mean something more that merely ‘unusual’ but rather less than unique, which means one of a kind. In his judgment, Judge Magagula said the aim of the law was to protect law abiding citizens from violent crime and criminals. The accused lawyer is facing charges under the fifth schedule and, according to Judge Magagula, Section 96 (12) (a) was applicable. This section states that in the fifth schedule, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law.
Unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist, which in the interest of justice permit his or her release.

“He has to adduce evidence to convince the court that there is something unusual in his particular circumstances. Suffice to say that the applicant has not adduced evidence to the satisfaction of this court that exceptional circumstances exist that permit his release on bail. “In the granting or refusal of bail, as the case may be, the court does not approach the matter on the basis of mere possibility but from the view point of likelihood,” said Judge Magagula. The judge said it was for those reasons that bail ought to be refused in this matter. In his founding affidavit, the lawyer informed the court that he was innocent of the charges against him and would plead not guilty at trial. He said his defence would be that he did not commit the offences he was charged with.

Malice

The lawyer submitted that he believed that the complainants were engaged in acts of malice by those who were against him. He said the witnesses, who were his children, had been removed from his custody by government agents. He said he would not be in a position to interfere with them. The lawyer stated that he would be prepared to relocate from his home to either Manzini or Mbabane to avoid contact with the witnesses, should they be released where they are presently kept.

After the lawyer’s arrest, according to the investigating officer, Inspector Millicent Dlamini, several women reportedly came out to report their ‘horrific experiences’ allegedly at the hands of the accused person. Dlamini said more charges were likely to be added against the lawyer. “After he was arrested, we have had an influx of people who have come out to report some of the atrocities that he has done in the community.

“I can confidently state that we are investigating a number of other offences that link him to other rape allegations and that we shall, therefore, be adding new charges to the ones we already have,” submitted the investigator.
She informed the court that the charges were not the same anymore and the possibility of them being amended and added was high, especially now that the police were also receiving calls informing them about the lawyer’s alleged criminal activities.