Bail appeal success for rape accused

High Court overturns magistrate’s refusal

29 July 2021 | Justice

JANA-MARI SMITH

WINDHOEK

A 63-year-old Walvis Bay man accused of raping a 13-year-old relative on several occasions in 2020 has successfully appealed to be granted bail.

High Court Judge Herman January overturned the February ruling of Walvis Bay Magistrate John Sindano, who earlier this year refused to grant bail to the Kuisebmond pensioner.

The man’s name is being withheld to protect the identity of the minor complainant.

In his judgment this month, January granted the pensioner bail of N$3 000 and attached several conditions. These include that the man must report to the Kuisebmond police station three times a week, that he may not leave Walvis Bay without written police consent and that he must surrender all travel documents to the police.

The pensioner was arrested in December last year and charged with raping the minor on three occasions in 2020, including her birthday.

In his bail application, the accused said a primary reason for the bid to be released was his age and his health status, which made him vulnerable to contracting Covid-19 in the overcrowded police cells.

He testified that he shared a small cell with at least 12 other men.

He also cited numerous health conditions that require a special diet and medication.

Moreover, the mother of the teenager he is accused of raping testified in court that she wished the accused to be released on bail.

The mother testified that the alleged victim, who had been staying with the pensioner prior to his arrest, had been moved to a friend’s home so she would not be in contact with her accused attacker.

The investigating officer testified that the investigation was completed and that the accused did not interfere during the investigation.

She admitted that during the investigation, the mother of the complainant had approached her to ask that the charges against the pensioner be withdrawn.

Interference

Magistrate Sindano’s refusal to grant bail was based on several reasons, including what he described as evidence of “dark forces” of interference in the investigation.

In his judgment, Judge January emphasised that an accused person is considered innocent until proven guilty.

“An accused cannot be kept awaiting trial in custody as a form of anticipatory punishment,” he stated.

He stressed that based on the evidence, there was no interference from the accused after his arrest, although the magistrate had placed the burden of the interference of other parties on the accused.

January said the “fear of interference with witnesses, in my view, stands on shaky ground.”

January emphasised that the consideration of bail rests on whether there is certainty that “the administration of justice will be served if the accused is granted bail.”

He concluded that the refusal to grant bail in this matter had been wrong.

“The appellant indicated that he is willing to stand his trial and proposed stringent bail conditions to be attached to the granting of bail. The investigating officer testified that she does not fear that the appellant might abscond although this is not a ground of objection.”

Raywood Rukoro of LorentzAngula Inc. represented the appellant while the State was represented by government-appointed lawyer Innocentia Nyoni.