‘FREEDOM’ OF LAWYER HELD FOR RAPES SHORT-LIVED

MBABANE – The joy of being granted bail after three failed attempts was cut short when the Crown filed a notice of appeal a few hours after he was granted bail.

This is the story of the lawyer, who was arrested for allegedly raping his biological daughters and helper several times. Judge Titus Mlangeni granted *Musa bail in the sum of E50 000. He was ordered to pay E7 500 in cash and to provide sureties for the balance. However, a few hours into his ‘freedom,’ the Crown filed a notice of appeal against the decision to release him on bail. He had filed an application to be discharged from goal/imprisonment forthwith, as envisaged by Section 136 (1), (2) of the Criminal Procedure and Evidence Act 67 of 1938 as amended.

Admitted   

Alternatively, Musa, applied to be admitted to bail as the court may deem fit. Section 136 (1) provides that subject to the provisions of this Act, as to the adjournment of a court, every person committed for trial or sentence whom the attorney general has decided to prosecute before the High Court shall be brought to trial at the first session of such court for the trial of criminal cases held after the date of his commitment, or else, shall be admitted to bail, if 31 days have elapsed between such date of commitment and the time of holding such session, unless (a) the court is satisfied that, in consequence of the absence of material evidence or for some other sufficient cause, such trial cannot then be proceeded with without defeating the ends of justice; or (b) before the close of such first session an order has been obtained from the court under section 137 for his removal for trial elsewhere.

(2) If such person is not brought to trial at the first session of such court, held after the expiry of six months from the date of his commitment, and has not previously been removed for trial elsewhere, he shall be discharged from his imprisonment for the offence in respect of which he has been committed. Musa was arrested on September 21, 2022, on three rape charges and two other counts under the Sexual Offences and Domestic Violence Act 15 of 2018. Sometime in February 2023, a committal for trial, which he said he was not served with was caused to be executed and he was enrolled for trial before Judge Sabelo Masuku.

Endorsed

Musa stated that a roll call was accordingly held and the trial date was endorsed by the court for the April 18, 2023, where he duly appeared. “It was at this juncture, that the applicant being presented and represented by counsel was able also make relevant representations to the court, in particular to ensure that his matter was heard before an impartial and fair hearing circumstances as tenants of true justice of a modern democratic legal system as ours is supposed to be professed so to be.

“I wish to state that the applicant threat undertook the processes and procedures of recusal proceedings, which were successfully in favour of the applicant after a long chequered show down that were concluded on August 11, 2023 with the court fully and unreservedly agreeing with the applicant,” Musa submitted.

Concluded

He submitted that, on August 11, 2023, when the recusal proceedings were concluded and the record and file for his prosecution was referred to the registrar by the court for enrolment before another judge, there was a roll for the third session of the year 2023, which began after September 6, 2023.

He said, having been committed for trial in February 2023, he was to be featured and accordingly enrolled in terms of the dictates of Section 136 (1) (2) of the Criminal Procedure and Evidence Act 67 of 1938 as amended. “I wish to state that the applicant was never enrolled nor allocated for trial to the third session of the High Court that was sitting from September 2023 to December 2023 according to law.

“There was then the first session of the High Court that ensued from January 2024 to April 18, 2024, where the applicant was also not featured or enrolled before any court or to also appear on the roll as envisaged,” said Musa.
He stated that from August 11, 2023, when the recusal application and proceedings were concluded, to date, it is a period of nine months.

“The applicant, therefore, herein makes a humble application to be released from imprisonment in terms of Section 136 (1) (2) of the Criminal Procedure Act 67 of 1938 as amended.

Prevail

“I wish to state that, there is nothing in law besides (a) (b) of Section 136 (1) and sub-section (3) and sub-section (4) that can prevail in law against the release and or be used to object to the applicant being ventilated to the application of Section 136 (1) (2) of the Criminal Procedure and Evidence Act of 1938 as amended.”

Musa argued that he is entitled to be granted the orders he was praying for. He further submitted that he is sickly and his health has always been deteriorating due to his detention. He said his sickness was known to the court. Musa appeared in person.

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