The high court recently found that the lower court had erred in its decision to deny bail to the accused, who lives at the same premises (a block of flats) of his alleged rape victim.
The State conceded that its case against a child rape accused was questionable.
This emerged in court documents when the man, a father of two, employed as a nurse at a private hospital in Mitchells Plain, was granted R3 000 bail during an appeal before the Western Cape High Court.
He was accused of raping an 8-year-old girl on August 9 in Delft South.
The man turned to the Western Cape High Court after his bail bid failed at the lower court.
But the high court recently found that the lower court had erred in its decision to deny bail to the accused, who lives at the same premises (a block of flats) of his alleged rape victim.
According to the court documents, the man allegedly called the girl to his house to send her to the shop.
“When the complainant entered his house, the (accused) told her to close the door, which she did.
He then instructed her to take off her clothes, which she refused. He proceeded to take her clothes off and inserted his finger inside her vagina.
No further evidence was led on behalf of the State,” court documents read.
The accused appealed on a number of grounds which included that the State had not opposed his alternative address in Mitchells Plain, no evidence was adduced by the State proving that the grounds laid down in section 60 of the Criminal Procedure Act were present, and that the State prosecutor admitted the case was “questionable”.
According to the court record, the State prosecutor said during bail proceedings: “Your Worship, and when the charges are initiated it is at that point still a ‘he say’, she say’ aspect. I can agree with my learned colleague that at this stage, the strength of the State’s case is questionable.”
High Court Judge Benedict Matlhape said: “It is disconcerting that although the accused is charged with a serious offence of rape, the State did not present any evidence in support thereof. No J88 report had been presented at the bail hearing. Furthermore, in her opposing affidavit, the investigating officer states that the investigations are nearly complete and all that is outstanding is the DNA report. She makes no mention of a J88 medical report.
“Having regard to the above, I am of the view that the magistrate misdirected herself materially by not taking into account the weakness of the State’s case against the accused even in circumstances where the State conceded such. The magistrate exercised her discretion to refuse bail wrongly and in the circumstance, this court finds that the magistrate should have admitted the appellant to bail.”
Cape Times
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