BHUNU
J: The applicant is a 28 year old
polygamist with four wives. He is in remand prison on allegations of having
raped the 13 year old complainant. The facts leading to the alleged rape are
somewhat common cause. The applicant is alleged to have entered into a forced
marriage with the complaint with the connivance of her father much to the
chagrin of her mother.
The
applicant took the complainant to his home as his wife in December 2009. While
he was living with the complainant as his wife he allegedly raped her sometime
in May 2010. Upon learning of this development her mother who did not approve
of the marriage reported the matter to the police resulting in the applicant's
arrest. He now applies for bail pending trial. The complainant did not make any
report until the matter had been reported to the police by her mother. Her
conduct in this respect is understandable as she really had no one to turn to
considering that her own father was in league with her alleged paramour.
Upon
medical examination both the complainant
and the applicant were found to be HIV positive. The applicant denies canal
knowledge of the complainant but admits having kept her at his home in
anticipation of marriage when she eventually became of age at 16 years of age.
The
State opposed the application for bail on the grounds that the gravity of the
offence and the likely penalty of aggravated rape where the applicant is
alleged to have infected his victim with a deadly sexually transmitted disease
is likely to induce him to abscond.. See
S v Nicholas & Anor 1977 (1)
SA 257.
Undoubtedly
the applicant is facing a very serious charge the consequences of which are too
ghastly to contemplate considering that the complainant is alleged to have been
infected with a fatal sexually transmitted disease. That being the case, I have
no difficult in accepting that the risk of abscondment is very high indeed. It
is not necessary to prove at this stage who infected who. Suffice it to say at
this stage the facts point at the applicant as the real culprit.
The
risk of abscondment is coupled with the contention that the State has a strong
case against the applicant. The undisputed facts in this case speak for
themselves. The applicant through his own mouth admits marrying the complainant
but disputes sexual intercourse. The veracity of his defence that he opted to
wait until the complainant became of age before having sexual intercourse with
her is for the trial court to determine. But at this juncture, the facts point
to sexual intercourse having taken place because sexual intercourse is the
basis of marriage. There is therefore the real possibility that the applicant
had sexual intercourse with the complainant otherwise he would not have removed
her from the custody of her parents after paying lobola. If he had wanted
merely to maintain the complainant and provide for her educational needs of his
prospective wife he could easily have done that while she was under the comfort
of her parent's custody. But how did he know that upon attaining the age of
consent she was going to accept his hand in marriage?
I
am therefore persuaded that the State has a strong case against the applicant.
The
State also fears that if granted bail the applicant is likely to interfere with
witnesses. The complainant is currently under the custody of her parents. Her
father who is the head of the family and wields enormous power as already
demonstrated has already married her to the applicant. He has already accepted
lobola from him and is a possible accomplice in this crime. The possibility
that the two might connive with each other to defeat the ends of justice cannot
be excluded regardless of where they may be residing in this time and age of
modern communication technology. That being the case the mere fact that the
applicant has provided an alternative address far away from the complainant is
no safety valve.
It
has also been demonstrated that the applicant has an appetite of having sexual
intercourse with multiple young girls, the risk of him committing similar
offences is therefore very high.
In
the result the application cannot succeed.
It is accordingly ordered that the application for bail pending appeal be and
is hereby dismissed.
Antonio &
Associates, applicant's legal practitioners.
The Attorney Generals
Office, respondent's legal practitioners
