Get IOL's cool new iPad app...
Umhlanga businessman Stewart Hewitt, who has been convicted of indecent assault, will have to be sentenced for the crime before he can bring an application to have the victim’s evidence against him ruled inadmissible.
This was the upshot of a decision handed down by Durban High Court Judge Dhaya Pillay on Thursday.
Hewitt, the director of Hewitt Yamaha and a jet-ski champion, was convicted by Durban Regional Court magistrate Delia Turner in December last year of sexually abusing the daughter of a family friend.
The abuse took place for several years from when the victim was eight years old.
Before Turner could pass sentence this year, the defence called for the case to be referred to the high court for a special review because the victim, who cannot be named, had testified through an intermediary when she had already turned 18.
The Criminal Procedure Act states that an intermediary system can only be used if someone is “biologically or mentally” under the age of 18.
It is used in cases in which children and sexual abuse victims have to testify against their attackers and to avoid their having to face their alleged attackers directly in open court. It involves testimony being delivered using a third party through a video link from another room in the court building.
In her ruling, Turner said she had granted the application for the use of an intermediary because the assaults had occurred on different occasions over a number of years and the witness had suffered severe trauma.
After reviewing the trial transcripts, and submissions from Turner, the National Prosecuting Authority and Hewitt, Judge Pillay said she was satisfied with the trial proceedings, but granted Hewitt leave to appeal against her decision in the Supreme Court of Appeal.
However, she ruled that the order be stayed until the finalisation of his criminal case, which means that he will be sentenced before any appeals can be launched.
In court papers, the woman said she had a “direct and substantial interest in the outcome of the matter”, and that Judge Pillay’s decision had been fair.
She added that Hewitt should not now be given the right to appeal against the use of the intermediary since he and his legal team had not objected to it during his trial.
The matter returns to the Durban Regional Court in November. - The Mercury