Did justice fail alleged rape vic?

Published Feb 10, 2012


A Pinetown man accused of rape has been acquitted after a Durban magistrate ruled that the alleged attack during a cruise on MSC Sinfonia did not happen in South African waters.

The court found the alleged assault of passenger Anika Marks by Sindhu Ramanandh Bhogal had happened in Mozambican waters.

“The court is not saying that you did or did not commit the offence. Only you will know that,” Durban regional court magistrate Geoff Abrahams told Bhogal in his judgment on Thursday.

He said he only had the defence’s “unequivocal” evidence that the ship was in Mozambican waters when the alleged attack took place, and he could not ignore this.

The State had not refuted this.

Abrahams said the State had not obtained written authorisation from the National Director of Public Prosecutions to allow the proceedings to take place in a South African Court of law.

Gauteng widow Marks testified Bhogal raped her on November 28, 2009, after allegedly spiking her drink.

Responding via messages, Marks said: “I am not dealing with them anymore. I’m done. The law is just messed up. How many times did he change his plea and his lawyer. Did that not tell the magistrate anything?”

In her testimony, Marks said she had been dancing at the Pasha Disco when she went alone to the deck to have a cigarette. Bhogal was there and they chatted.

A few minutes later she went to the toilet, leaving her drink and cigarettes on the floor next to Bhogal.

After she returned, she smoked a cigarette he offered her, felt her mouth going dry and Bhogal had offered her a drink.

She said she lost control of her head and body and then remembered walking down the stairs with Bhogal behind.

The next thing she remembered was Bhogal on top of her, with her dress up and underwear off, and him raping her.

Marks had told the court she only reported the matter to the ship’s manager a day before the ship was due to dock at Durban.

In his testimony, Bhogal had denied all the charges.

According to the heads of argument, after two pre-trial conferences with his first defence counsel, advocate Rajiv Sarjoo, Bhogal made several admissions, one of them being that he was aware of the Criminal Law Amendment Act 37 of 2007 and that the court had jurisdiction to hear the matter.

The trial then proceeded and the State closed its case after calling the evidence of four witnesses. Bhogal testified and was cross-examined.

After this Bhogal changed his lawyer. Bhogal’s new advocate, Ken McIntosh, argued that the State had no authority to prosecute as it was not authorised in writing by the National Director of Public Prosecutions.

McIntosh submitted in supplementary heads of argument that the “submissions and manoeuvres” by the State, since it realised it did not have the proper authority to prosecute, are attempts to “circumvent the law and to justify an unauthorised prosecution”.

He said the assertion by the State that the defence “who agreed at the outset that the incident took place in the territorial waters” was without basis.

“The trial court, prior to the trial commencing, had no power to decide the issue that was placed before it and in doing so assumed jurisdiction in circumstances where it had none,” McIntosh said.

“The State’s conduct in proceeding to trial for an alleged offence that was committed in Mozambique is unlawful and unconstitutional,” he said.

McIntosh argued that Bhogal’s right to a fair trial had been breached.

The State had argued that the fact the offence took place within the court’s territorial waters was never in dispute and it was agreed upon by all parties, prior to the trial, that the incident had taken place in South African waters.

The State said there had been no evidence in the docket at the start of prosecution to suggest that the ship was out of South African waters.

Abrahams also stated in his judgment that there was no irregularity or misdirection affecting justice or fairness to move the court to refer the proceeding for further review.

Meanwhile, the National Prosecuting Authority (NPA) spokeswoman, Natasha Ramkisson, told the Daily News yesterday the State stood by its resolve that there was no need to prove jurisdiction. “If we don’t take the matter on review then definitely on appeal. Once we have a chance to look at the transcripts, we’ll know what our options are. We have to remain tight-lipped for now until we’ve had a chance to go over the transcripts.”

Marks responded via her former colleague, the person she first turned to about the rape. Her colleague said: “I don’t blame her for not speaking to the media directly. She had the guts to be named and this is not fair. She wasn’t afraid of the ridicule and the mocking and now that he’s acquitted she can’t take it.”

Marks has since resigned and relocated. - The Mercury

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