Advocacy groups have condemned suspended deputy national police commissioner Lieutenant-General Shadrack Sibiya's claim that he did not rape an 18-year-old woman, but had "consensual" sexual intercourse with her.
Sibiya, 59, appeared in the Randburg Magistrate's Court on Tuesday for a formal bail application after being arrested on 21 September. The state is opposing his release and has accused him of rape, trafficking in persons, promoting the sexual grooming of a child and two counts of sexually grooming a child.
The rape allegation relates to an 18-year-old woman who, according to the state, was taken to a Sandton strip club with friends before being brought to a hotel. Prosecutors allege that she became heavily intoxicated and was later raped. Sibiya denies the charge and says the sexual encounter was consensual.
The case has drawn strong criticism because of Sibiya's age, his senior position in the South African Police Service and the gap between him and the woman. The state says he is also linked to allegations involving a 16-year-old girl between July and August this year.
Sarah Lekale, chairperson of the Free State GBV Forum, said the case showed why young women who have recently reached adulthood remained at risk.
"Government needs to change the age of consent because what we see is that 18-year-old [girls] are the most vulnerable; this is based on what we have observed here at our shelter.
"They are vulnerable because at this age they want to experiment and [they] make the wrong decisions because they are told that they are now adults, and they are not."
Bridget Ramokone, founder of the Lentswe Laka Foundation, said Sibiya's account raised questions about power, influence and coercion.
"Because here we are speaking about a senior police officer. Taking teens to strip clubs and hotels and providing them with alcohol and then engaging in sex cannot be brushed off as consensual. The court must fully examine [this case]," she said.
Ramokone said the foundation stood firmly with the victims.
Lesley van Selm, managing director of Khulisa Social Science, also criticised Sibiya's position in the bail proceedings.
"Of a man who held such a senior position, it is inexcusable for the man of his maturity and age to apply for bail on that basis, I think it makes a mockery of the justice system."
Sibiya's version of events was placed before court in an affidavit read by his legal representative, Advocate Estelle Kilian SC. He disputed the state's account of what happened at the Sandton hotel in May and said the woman had agreed to have sex with him.
"When we arrived in the hotel room and other ladies left the room, MC [complainant] and myself were left in the room. We proceeded to have consensual intercourse," Sibiya said in his affidavit.
He said he remained in contact with the woman afterwards and that she had expressed an interest in seeing him again. A further meeting never took place, he said.
Sibiya told the court that he had been invited to a hotel by a man identified as Mr M. When he arrived, he found the man with three women in a room. Sibiya said the women appeared intoxicated and that he stayed for no more than 30 minutes.
He said he returned the following day, had lunch with the women and was later left alone with one of them. He said they had consensual sex and that she later wanted to see him again.
Sibiya denied recruiting or transporting anyone for sexual exploitation and rejected the state's account of the events. He also denied the grooming allegations involving the 16-year-old girl.
His affidavit describes a separate incident involving Mr M's daughter, identified in court as ZM. Sibiya said Mr M had shown him an explicit video of the girl after becoming distressed by its contents. Mr M then allegedly telephoned his daughter and questioned her about an alleged crush on Sibiya.
Sibiya said ZM asked to see the video and that he sent it to her at her request. His defence is that this did not amount to grooming or the unlawful distribution of explicit material.
The magistrate questioned why Mr M would have sent the video to Sibiya while the two men were together. After consulting Sibiya, his lawyer said they could not explain why Mr M had sent it.
Sibiya said the charges were based on the actions of Mr M and should not be attributed to him.
"I submit that these allegations are devoid of any substance or truth. I will show that in fact Mr M was the person who had perpetrated the aforesaid actions," he said.
The bail application was postponed to Thursday, 1 October, after the state said it needed time to consider and verify new evidence. Sibiya has offered R20,000 bail and said he would not evade trial or interfere with the investigation.
He also complained about the manner of his arrest. Sibiya said he had written to the National Prosecuting Authority to offer his co-operation and had indicated that he was prepared to hand himself over. He questioned why he was arrested at the Grand Club in Rivonia instead of at the home address listed on the warrant.
"My arrest was a well-orchestrated, diabolical plan aimed at incarcerating me based on false and trumped-up allegations. I was arrested on 21 September at 17h44 at The Grand Club in Rivonia. My person was searched and all requested personal items found upon me seized, including my licensed 9mm Uzi self-loading carbine and ammunition," he said.
He said his home was searched on the same day and alleged that police had been monitoring his movements. He further claimed that the searches formed part of a wider plan against him, including a raid on the home of suspended police minister Senzo Mchunu.
Sibiya has linked his arrest to the Madlanga Commission's Recommendations Task Team, accusing the team of abusing its powers and using the sexual-offences case to remove him from the police service. He argued that the allegations fell outside the commission's mandate because they did not arise from evidence heard by the inquiry.
"The obvious but crucial question that needs to be answered by the state is why the CRTT and its members involve themselves in matters that clearly did not emerge from the commission scope or mandate," Sibiya said in his affidavit.
"The answer lies in the pertinent fact that all allegations are aimed at removing me from the SAPS sphere and due to the fact that no charges emanating from the commission could affect the same. The current case was trumped up against me," he said.
The Madlanga Commission is examining allegations of criminality, political interference and corruption in South Africa's criminal justice system. Its second interim report, noted by President Cyril Ramaphosa in August, recommended disciplinary proceedings and immediate criminal investigations involving Sibiya, Sergeant Fannie Nkosi, Brown Mogotsi and a witness identified as Witness G. The commission said criminal prosecutions should follow if sufficient evidence was found.
The report also referred an alleged off-the-books Crime Intelligence operation for investigation. Evidence heard by the commission included claims about Sibiya's dealings with alleged underworld figure Vusimuzi "Cat" Matlala. It was alleged that Matlala gave Sibiya 20 impalas and money, although the purpose of the alleged gifts had not been established. Sibiya has denied receiving the impalas.
The commission's referrals came as Parliament pressed the police service to act against senior officers facing allegations of wrongdoing. In June, the chairperson of Parliament's Portfolio Committee on Police welcomed the suspension of five senior SAPS officers linked to the Medicare24 Tshwane tender and called for disciplinary and criminal investigations to be completed without delay.
Sibiya was served with notice of his own disciplinary hearing while he was in the holding cells at the Randburg court. The hearing is scheduled for 5 October and will deal with allegations arising from the Madlanga Commission.
Police spokesperson Brigadier Athlenda Mathe said the service would follow the court's directions. If Sibiya remained in custody, arrangements would be made with correctional services for the hearing to take place at Kgosi Mampuru prison. If he was released on bail, a different venue would be communicated to him.
Lieutenant-General Jan Petrus Scheepers has been appointed as the presiding officer for the disciplinary process.
The bail hearing and the disciplinary action now place two separate investigations involving one of the country's most senior police officers before the public. The court case concerns the sexual-offences charges, while the internal hearing will examine allegations connected to the police relationships and conduct raised during the Madlanga inquiry.
The state is expected to respond to Sibiya's bail application when proceedings resume on Thursday.