Johannesburg - A struggle icon’s grandson has made a sworn affidavit in the Johannesburg Regional Court stating that the sex between him and his rape accuser “was consensual”.
The 24-year-old suspect made the claim during his failed bail application on Friday after his arrest on August 15 and charge of rape, attempted rape and sexual assault.
The alleged rape took place at a restaurant in Greenside on August 7.
He made his first appearance in court on Monday and was given only four days to apply for bail.
According to the docket presented in court, the alleged rape victim is 15. Because of the age, prosecutor Thando Hopa charged the accused with offences classified under Schedule Six of the Sexual Offences and Related Matters Act of 2007.
In the Act, sex with a child under the age of 16 is a criminal act.
If the court accepts his version of consensual sex, he faces an alternative charge of statutory rape.
The Act stipulates that any accused person charged with a Schedule Six Offence has an obligation to address the court under oath and give “exceptional circumstances on why he or she should be released on bail.
Magistrate Pieter du Plessis, who heard the application, reminded the suspect of the requirements of the act and asked him whether he wanted to continue or abandon his application.
The accused said he understood the Act and wanted to continue.
However, three hours later, the accused and his counsel advocate, Nico Swart, chose only to submit his main affidavit and those of his friends, but Du Plessis would have none of it.
Du Plessis did not make an outright rejection, but said the affidavit fell short of the requirements of the Act.
He also said that the only reference the accused was making in response to the allegations was that the sex was consensual. While his affidavit was not read into the court records, Du Plessis made it clear that it was not enough to secure his freedom.
But Swart maintained that his client’s case was solid.
Defence counsel stated in court that his friends’ affidavits were enough to secure his release on bail. Swart also said that his client was under the impression that his accuser was above the age of 16 because her “Facebook account states that she was born in February 1999.”
“This makes her 16,” Swart said.
“We also have a witness who can support the accused’s version that the sex was consensual. The witness said he had witnessed the sex act while peeping through the window of the courtyard; and his observation was that the sex was consensual,” Swart said.
This prompted the magistrate to question the omission of such a statement but Swart replied that the witness was afraid to make a statement – fearing arrest – for being an illegal immigrant in the country.
The defence also insinuated that the alleged victim might have made false representation of her age to the owners of the restaurant.
According to them, the area where the accused, the victim and their group of friends dined was restricted to those aged 18 and above.
“In fact, the accused and his friends overheard the victim and her friends saying they were 18,” Swart submitted.
Owing to the controversy about the accuser’s age, the suspect’s application was postponed to Tuesday.
The court ordered him to obtain an affidavit from the owner of Mama’s Shebeen about the possibility that his accuser has falsified her age to gain access to the restaurant.
The accused is also expected to obtain another affidavit from the “illegal immigrant” who allegedly supported his version of consensual sex.
The State was ordered to produce an authentic birth certificate or ID of the complainant to verify her age.
Saturday Star