THE bail application of a 68-year-old accused of rape and sexual molestation of minors, was denied in the Kenton Magistrate’s Court last Thursday, much to the delight of the crowd of around 50 women who waited patiently and sang songs during the six-hour long application.
Defence attorney Basil Williams, of BA Williams Attorneys in Grahamstown, called the man (who cannot be named until after he has pleaded), to the stand and asked him for his version of events as they transpired over the period he is accused of the crime, December last year to July this year.
The accused man is self-employed and renovates houses by waterproofing roofs.
The man, who said he was religious and had converted eight prisoners while in custody, stated he had seen no children on his property for the whole of this year, aside from a woman selling spinach who had visited his home with two young grandchildren in tow. It was later revealed that one of his accusers was one of the grandchildren. The man said he had given them food and money, and had even fixed the grandmother’s roof.
He said that last year a group of four or more children had arrived at his home and, on opening his door, had entered, but he had shooed them out, and then given them food. Over a period of time the children had appeared again, but this time they did not enter his home. He said he had given them money. On the third occasion he had told them he had no money and they had left and never returned.
A house guest who had lived at the accused’s home from April through July testified that she had not seen any children on the property while she had lived there, and that the man had been working almost every weekend. A man who had worked for the accused since he had started his renovation business also gave a character reference referring to the man as “a good, kind and godly man”. Then the accused’s sister took the stand and also gave a glowing character reference.
Prosecutor Chwayita Mkhwayimba questioned the validity of the sister’s address in Jeffreys Bay, and said that the investigating officer Linda Tete had no confirmation of the address. Mkhwayimba also revealed that the accused is an ex-Zimbabwean farmer who came to South Africa 18 years ago, but has no papers or documents and is therefore residing illegally in the country.
Mkhwayimba argued that because the accused rented the property he had no fixed address. It was also determined he had not registered his roof-fixing company and pays no taxes on his income.
When called to the stand by Mkhwayimba, Tete referred to the police docket to confirm her facts. The defence has no access to the contents of the docket, and only sees the charge sheet that is produced from the contents of the docket. Several questions were posed to Tete by Williams that she struggled to answer, causing the defence attorney some exasperation.
For example, the charge sheet said there was one count of child rape for each of the two alleged victims (there were originally four alleged victims). Williams wanted to know exactly when these incidents occurred in order for his client to build a defence. Tete was unable to say, claiming there were multiple times these incidents occurred but that the children could not say specifically at what dates.
There was also a question as to the ages of the alleged victims. The charge sheet stated that one child was 10 years old but, on cross examination, it was determined that both children were 12 years of age.
The children had reported an address where the alleged incidents took place, which was not that of the accused. According to the Sexual Offences Act, a victim of rape must be examined by a medical doctor at the time that a statement is taken. However, in this case the statement was made on July 31 and the medical examination only took place on August 2. Further, only one of the claimants showed obvious evidence of sexual abuse.
In his summation, magistrate CBJ Wright said that, as it was a schedule 6 crime, the accused had to make a claim of exceptional circumstances to justify bail being granted. He said even the defence attorney had admitted that no exceptional circumstances could be claimed. Wright also stated that, contrary to Williams’ claim, he believed the state’s case was not weak. With no fixed address and being in the country illegally, Wright denied bail.