School abuse: bail bid fails

2016-09-07 10:49
Accused counsellor to remain behind bars.

Accused counsellor to remain behind bars. (File)

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The school counsellor accused of raping and indecently assaulting pupils in his care will remain behind bars.

There was joy in the Pietermaritzburg high court on Tuesday when a judge confirmed he would not get bail.

“At least we now know that children out there will be safe,” said Laney Augustyn, a member of a concerned parents group that has launched a no-holds-barred Facebook page in connection with the case.

Dismissing the counsellor’s appeal against the earlier decision of magistrate M. Boikhutso to refuse him bail, Judge Nkosinathi Chili said it was unfortunate the counsellor had decided to “keep his cards close to his chest” in light of the very serious allegations against him.

He chose to give evidence on affidavit, and not to testify under oath.

The judge said the counsellor had failed to show that exceptional circumstances existed to warrant his release on bail, as he was legally obliged to do in a case of this nature.

He added that the defence had not contested the prosecutor’s statements at the bail hearing that there is medical evidence supporting the rape and sexual assault charges, and that the alleged victims were traumatised to the extent they had to receive counselling.

In light of this, the judge said he accepts there is merit in the allegations in relation to the first two rape counts.

Judge Chili said defence advocate Brad Osborne had pointed out “a lot of misdirections” by the magistrate who dealt with the bail application. He agreed there were “shortcomings”, but added that even though the magistrate’s reasoning had been wrong, that did not mean the result was also wrong.

“The appeal is against the result, not the reasoning,” the judge said.

Judge Chili said although Osborne had criticised the state for providing the counsellor with “vague charge sheets”, which lacked detail as to time and place, this was not an issue that was taken up by the counsellor at the bail application.

In fact, the counsellor said in his affidavit: “I am aware of the charges of rape and sexual assault that have been preferred against me”.

Judge Chili further said he was alive to the fact that every accused person has a constitutional right to be presumed innocent until proven guilty, and of the counsellor’s right to “remain silent”.

However, he found it “interesting” to note the counsellor’s choice of words when he elected to make an affidavit rather than testify under oath, he said. The counsellor had said it was explained to him that if he gave evidence it would be admissible as evidence against him at his trial, and he therefore deemed it “prudent” to depose to an affidavit.

“One is tempted to conclude he has got something to hide. That conclusion may be wrong, but the person best suited to clarify that aspect is the appellant [the counsellor] himself. Unfortunately he decided to keep his cards close to his chest in the face of allegations which are … of a very serious nature,” said the judge.

LEGAL sources said the failed bail appeal does not necessarily signal the “end of the road” for the counsellor — he has options to appeal the ruling or to bring a fresh bail application if new facts emerge.

Asked if these options were being considered, defence advocate Brad Osborne said the defence had a lot to consider and would not take a decision in haste.

A large crowd of parents of the alleged victims and their supporters gathered in the high court foyer from 8 am on Tuesday, and waited eagerly for the judgment which was eventually delivered at 11.30 am.

“It was worth the wait,” said a parent later.

All but one member of the gallery had smiling faces after the verdict, and that was the counsellor’s mother who stayed close to the defence team throughout the proceedings.

Education MEC Mthandeni Dlungwana also put in a brief appearance at court early, but was no longer present when judgment was handed down.

Laney Augustyn, a trauma counsellor, said before the judgment that all the parents were anxious the counsellor should not get bail.

She said the charges against the man involved many children, which they felt made him a predator.

Augustyn said the aim of the group was to protect children from harm and to encourage any child who may have been abused in the past, but was too scared to report it, to come forward.

Although she understood that the media (including The Witness) is bound by law not to publish the name of the counsellor until he has pleaded to the charges, the group had “no qualms” about naming him on Facebook.

“We are not bound by that law and that is the beauty of social media,” she added.

Augustyn said medical evidence supports the charges and “we have named him based on that”.

Read more on:    pietermaritzburg

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