Durban - The Durban drama teacher facing charges of using his pupils to create child pornography is expected to be released from Westville Prison on Thursday after a high court judge set bail at R250 000 on Thursday with strict conditions.
Judge Mahendra Chetty upheld the teacher’s appeal against an earlier refusal by a magistrate to grant him bail, saying the State had not proved that he was a flight risk.
His attorney, Nerissa Farrington, left court to meet the teacher’s bank manager to try to get the funds and said she intended to get him out of jail, where he has been for two months. The bail is expected to be paid over on Thursday morning.
The teacher, who cannot be named until he pleads, is facing 11 counts including creation of child pornography involving two teenagers at the school where he worked.
He has a previous conviction for indecent assault dating back to 2003, involving a pupil at another school where he worked.
His bail application in the magistrate’s court was opposed by the State, and the magistrate, in his ruling, found that he had not been truthful about the extent of his assets (R2.4 million in cash and a property worth R1.7m) and this meant he could be a flight risk.
In his written judgment on Wednesday, Judge Chetty said the magistrate had been swayed by his failure to make a full disclosure of his financial resources.
“The inference was drawn that he hoped to secure bail in a far lesser amount (R10 000), leaving a substantial portion of his savings intact. The underlying suspicion was that with access to vast amounts of cash, his prospects of fleeing or evading trial were greater.
“But during argument before me, it was intimated that the non-disclosure may not have been intentional but rather due to a misunderstanding of the amount of bail the appellant considered reasonable. The fact that he has a substantial amount in his savings cannot be held against him.”
The judge said that while the public might express strong views against crime perpetrated against children and the increase in child pornography, it was of the utmost importance that there be an understanding that a bail hearing did not involve the determination of guilt.
The granting of bail, he said, should not be interpreted as the judiciary being “soft on crime” or in any way exonerating the accused.
The teacher’s right to liberty was clearly entrenched in the Bill of Rights and he believed that the bail hearing had been conducted under the wrong schedule of the Criminal Procedure Act, in which the teacher had been forced to prove that his release was in the interests of justice, whereas that onus should have rested on the State.
Regarding the amount of bail, the judge said it had been suggested that this be linked to his Glenwood flat and, if he absconded, the State would be entitled to it.
But he said this could lead to “untold consequences”, and he believed it better to order that he hand over cash to ensure that he would rather stay and stand trial than abscond and lose it.
The judge said while it was almost impossible to ensure that he would not contact witnesses, his advocate and the State had agreed he would be extremely foolish to do so because it would result in his bail being cancelled.
The teacher must report three times a week to his local police station, and the judge ordered the investigating officer to provide a list of witnesses with whom he must not communicate.
He is to live in his Glenwood home and is not allowed to leave the province.
He will appear in court again in December.
The Mercury