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Rape suspect: SA cannot try him

Published Dec 17, 2011


A Durban man claims South African courts cannot try him for allegedly raping a Joburg woman on a cruise ship – because the incident happened on international waters.

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In a sensational twist to the case involving the MSC Sinfonia cruise ship, lawyers for Pinetown resident Sindhu Ramanandh Bhogal say he does not have a case to answer.

Bhogal, a married man and a father of one, appeared in the Durban Magistrate’s Court on Thursday to face charges of raping Gauteng woman Anika Marks on board the MSC Sinfonia on November 28, 2009, after allegedly spiking her drink. She has been willing to be named as she feels this could encourage other women who have been raped to take action.

The cruise liner regularly sails between Durban and Mozambique, carrying thousands of passengers during the peak festive season from November until March.

After two years of legal arguments, the case now rests on whether the state’s legal team has jurisdiction to continue with the prosecution – a matter which Bhogal’s new advocate has challenged as the incident was alleged to have happened in international waters.

Marks says she awoke two hours after the alleged rape. She accompanied her colleagues to Portuguese islands – one of the ship’s stops on the cruise – and only reported the matter to the ship’s manager, after confiding in a close friend, a day before it was due to dock in Durban harbour. Bhogal has denied the charge, and is out on R1 000 bail.

Bhogal’s advocate, Ken McIntosh, citing Section 61 of the Criminal Procedures Act, said as the alleged crime occurred in international waters, the court could not proceed with the matter.

He said his legal assistants went to great lengths to confirm the whereabouts of the ship, and spoke to officials in charge of the ship’s navigation.

McIntosh said he obtained a statement from the ship’s captain stating that the vessel was not in South African waters at the time of the alleged incident. McIntosh said as the state had no authority to hear the case, his client should be discharged on that basis.

Senior state prosecutor Vaneshree Moodley said “this is a very unusual case,” but argued that the matter could go ahead in the Durban court.

“During the pre-trial negotiations it was accepted it took place in (South African) territorial waters, the state even brought this to the attention of the defence,” said Moodley.

She argued that the alleged rape took place the same night the ship left Durban.

“This court has all the ability to look at the arguments, the state has always insisted it (the ship) was in territorial waters and the state still stands by it,” said Moodley.

She then said that as this was a new matter being brought up by the defence team, the state should then have the opportunity to get the authority from the National Prosecuting Authority to go ahead with the case.

In an interview last year, Marks said she had chosen to reveal her identity to encourage possible rape victims to come forward.

“I have got nothing to hide. This will encourage other women to speak out, and not be quiet. When someone is raped the first feeling is shame. That is exactly where we women are wrong. He violated you.”

She was on board the ship as part of a business trip, a three-day cruise, with 40 work colleagues.

Magistrate Abrahams said he would prepare a written judgment on the matter and the case was postponed to February next year. - Arthi Sanpath

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