MBABANE – In a space of three years, one of the daughters of the lawyer who is accused of raping his own children, is said to have fallen pregnant six times.
This is alleged to have happened when the minor was between the ages of 13 and 16 years old. The lawyer allegedly forced the child to have an abortion six times. Three of the abortions were allegedly carried out in the Republic of South Africa (RSA), while the other three in Eswatini.
This was mentioned by the Supreme Court in its judgment yesterday, dismissing the bail appeal of the accused lawyer. The court said this was serious and it suggested a total lack of human values by the accused lawyer. The appeal was heard by Judge Nkululeko Hlophe, together with Judge Stanley Maphalala and Judge Mbutfo Mamba. Judge Hlophe stated in the judgment that what was apparent was the egregious nature of the allegations as revealed in the charges against the lawyer.
Complicated
He also said the matter was complicated by the fact that all the survivors were closely related to the lawyer. This, according to the court, underscored the difficult circumstances a court found itself in if it had to hear a matter involving an officer of the court. Judge Hlophe said in a matter like this, the allegations engendered a fresh perspective in the consideration of the matter against the accused. “It makes it more serious and outstandingly bad. He is likely to attract a harsher than normal sentence in the event of a conviction. “This brings about a likelihood for him to abscond and not attend trial,” said the judge.
The court noted that according to the accused lawyer, he was once arrested for a similar offence as the sexual offences referred to in some of the counts herein which occurred around 2008. He was thereafter released on bail, a position he has remained under to this day. “I note the disturbing suggestion this carries with it namely; that notwithstanding the appellant’s said arrest and subsequent release on bail; it did not help deter him from committing similar abhorrent offences if the charges and the most recent offences mentioned therein are anything to go by. “This alone should in law prevent him from being released on bail.
“I say this because he is now facing newer charges to those for which he was arrested and subsequently released on bail in 2008. “He is now shown as having committed similar offences later on, in 2008 until 2011 in the case of count 1, notwithstanding that he was actually out on bail. “He allegedly also committed similar offences against the other one of his daughters between 2008 and 2011. “The charges allege further that between 2019 and 2020, he again committed similar abhorrent offences against another one of his daughters,” explained Judge Hlophe.
Significance
The judge said it was of significance that the similar offences were committed while the lawyer was out on bail for the offences he, in his own words, had been arrested for allegedly committing, subsequently charged and eventually released on bail in 2008. On this point alone, according to the court, it means that the chances of the lawyer being released on bail again should be very slim, if at all they are there. “This is because he would be taken to have violated one of the implied bail conditions if it was not a direct one, said the judge.
“If the appellant repeatedly committed similar abhorrent or horrendous offences after he had been released on bail, as the charges suggest, it would not only mean that the conditions imposed by law upon his release on bail mean nothing to him than that society as made mainly of law abiding citizens, whose peace and safety ought to be protected, was now left vulnerable. “In such cases, the law abiding members of society who look up to the courts for their protection can most effectively feel so protected if the perpetual and habitual offenders are kept away from society. “That is to say, it should be found at that stage that the interests of justice are best served when such people are not granted bail,” added the judge.
Suggestion
Judge Hlophe continued to say: “The suggestion is that such a person has no regards for the law because instead of him toning down after his arrest and release on bail, he still went back to commit similar, if not worse, offences. “Refusing to grant such a person bail could actually go to show the desire by the courts to ensure the protection of other members of society, including reassuring those who had earlier been violated that there was no chance of them being befallen by same plight.
“The complainants and the witnesses are all known to the accused. It could be extremely difficult if not impossible to police any condition preventing communication between the applicant and the witnesses may add that (the) gravity of the offences and the possible sanctions or penalties should they be proved at trial, are such as would encourage the applicant not to stand trial.” Judge Hlophe said when the appeal was heard, it was indicated that the lawyer’s trial had been allocated a hearing date in the High Court.
According to Judge Hlophe, it was often difficult to intervene and order the grant or otherwise of bail in a matter already allocated a trial date or one where a trial had commenced if that court was not the one seized with the trial in that matter. The lawyer was represented by Khumbulani Msibi, while Crown Counsel Brian Ngwenya appeared for the Crown.
