Durban - A convicted murderer on parole tried to use a legality to escape charges of rape during a court appearance this week.
The 32-year-old man, on parole for the murder of a prominent KZN politician, would have walked away from the charges had he not encountered an alert state prosecutor and magistrate who picked up on his plan.
The accused, who cannot be named because he is charged for a sexual offence, told the court he had been detained at Westville Prison since October, and applied for the charges against him to be discharged.
This was because he should have appeared in court within the legislated “48-hour period” of being detained, implying that his detention was related to the rape charges.
But he failed to tell the Chatsworth Magistrate’s Court that he was detained at Westville Prison because he had violated his parole conditions, and not for the rape charges.
The breach of parole came about when he went on the run briefly, after learning that he was wanted by the police for the alleged rape of two girls, aged seven and 13, in August last year.
On October 30, he handed himself to authorities at Westville Prison and has been in custody ever since.
The accused was paroled in 2010 after serving part of a 20-year sentence for bludgeoning to death the politician in 2001.
He was expected to have made two court appearances for the rape charges, but he never attended.
The state needed to process a warrant to secure the suspect’s attendance before magistrate Dorcas Khuzwayo, at Chatsworth Magistrate’s Court on Tuesday.
State prosecutor Owen Subban told the court that the matter was struck off the court’s roll owing to the accused’s previous non-appearances in court.
Legal aid attorney Mondli Mthethwa, representing the accused, told the court his instruction was to abandon bail.
But just as the court digested this submission, he was summoned to the dock by his client.
After a hushed discussion with the accused, dressed in civilian attire and wearing a gold chain around his neck, Mthethwa addressed the court on behalf of his client.
He said: “The accused was formally charged in October, he should have appeared in court two days later. It is procedurally wrong for him to be in court.”
The magistrate said she could not see the problem because the accused had not appeared before the court when he was supposed to.
“The State should have done something to secure his attendance,” Mthethwa said.
He told the court his client “feared for his life” when he heard police were looking for him and responded by handing himself over to authorities.
Subban countered by saying that the accused voluntarily admitted himself at Westville.
“This (the rape charge) was not the only matter he faced,” the prosecutor said.
“The issue he’s battling with is that he was in breach of his parole conditions. He is in custody because of the breach,” said Subban.
Subban said on both occasions the accused was due to appear in court his name was called out three times at Westville to board the vehicle that transported prisoners to the Chatsworth court, but he didn’t respond.
As a result, the matter was then struck off the roll.
Subban requested that “the prison board answer why the accused was not in court”.
In ruling on the whether the rape charges against the accused would stand, the magistrate said: “The court is of the view that since the matter was struck off the role previously this now counts as his first appearance. The court is of the view that he is correctly before court.”
She adjourned the matter to February for further investigations and a formal bail application, and told Mthethwa he could pursue any civil action on behalf of his client.
Correctional services spokesman Thulani Mdluli said they received only one requisition that required the offender to appear in court as per procedure. “We obeyed the instruction,” he said.
Sunday Tribune