5 July 2018

South Africa: Public Outcry Should Not Influence Court in Case of Man Accused of Raping Girl, 10 - Lawyer

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The lawyer representing the man accused of raping his 10-year-old stepdaughter says the public outcry the case has attracted should not be a determining factor in his client's application for his release on bail.

Mondli Mthethwa was arguing in the Verulam Magistrate's Court on Thursday, where his client applied for bail.

During the bail application, it was alleged that the man raped his stepdaughter 900 times from 2013 to 2018.

Mthethwa submitted on Thursday that, while the court should always take public outcry into account, it was "not law".

Mthethwa also told Magistrate Irfaan Khalil that public opinion was not "decisive" in the matter.

He added that the same community would not "feel right" if the court denied the accused bail and later found him innocent.

"If the wind is blowing that side, they will follow it and go that side," he said.

Gun posts are 'freedom of speech'

Mthethwa also asked the court to disregard a petition against the accused's release on bail. The State handed it in shortly before arguments began.

"One person can write such a document and hand it to the investigating officer and say this is what we're saying as the community," he argued.

Regarding the guns that his client had posted on his two Facebook accounts, Mthethwa said there was freedom of expression in the country.

"The mere fact that one posts guns doesn't mean that the person is violent. It must not classify the character of that person," he added.

He said the State failed to show the court other pictures the accused posted while "eating out".

Girlfriend's protection order

Mthethwa further submitted that the accused should be granted bail because the evidence before court was "exceptional".

"The heinousness of the crime must not influence the mind of the court," he said.

He added that the accused's previous convictions of assault and malicious damage to property involved "minimal violence" because he only paid R400 fines for each of the convictions.

He referred to claims that the accused had breached conditions of a protection order his girlfriend obtained against him in the Pinetown Magistrate's Court this year.

Mthethwa argued that the court should not rely on the evidence of the investigating officer.

The investigating officer testified on Tuesday that the accused had threatened the lives of the little girl and witnesses when he interviewed him. The officer said there were four other police officers present when the accused made the threats.

Victim's evidence 'will be treated with caution'

Mthethwa said, if the accused had really made the threats, he should have been charged because threatening someone's life was a crime.

He submitted that the court should consider that the main witness in the matter was a 10-year-old child who was a single witness.

"Her evidence will be treated with caution in the trial court. The parts she would testify about are the only parts that might get the accused convicted. She will not be corroborated. There's also no DNA evidence," he said.

Prosecutor San Bhartu argued that the accused lied in his affidavit and failed to divulge his previous convictions.

She revealed that the victims in the accused's second assault conviction were his parents.

"The accused's former girlfriend also had to obtain a protection order against the accused," she said.

No positive ID

Bhartu said the man was familiar with the witnesses in the matter.

"They will be influenced and intimidated if he is released," she said.

Bhartu also said the court should consider that he had lied about his employment and salary.

"He also frustrated attempts by the victim's family to access her. As her primary caregiver, he failed to take her to school," said Bhartu.

She submitted that the accused had no positive identity document and had no assets in his name. He also had no stable residential address.

Case postponed

The court heard that the accused did not live in one place for more than three months.

"The safety of the accused will also be jeopardised if released," she said.

The residents of Verulam and security guards allegedly assaulted him on June 11 after it was alleged that he had been raping the little girl since her mother's death five years ago.

She submitted that if the court released the accused on bail, society would lose its trust in the courts and take the law into their own hands.

"I submit that the accused failed to prove to the court that exceptional circumstances existed for him to be released on bail," said Bhartu.

Khalil postponed the matter to Friday for a ruling.

The accused, 43, is charged with rape, sexual grooming of children, sexual assault and exposure or display of or causing exposure or display of child pornography or pornography to children. Additionally, he also faces charges of assault with intent to do grievous bodily harm, compelling or causing children to witness sexual acts and child abuse or deliberate neglect of a child.

He cannot be identified until he has pleaded to the charges.

Source: News24

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