Pastor accused of raping daughter for 13 years
17 June 2019 | Justice
The enquiry into the revocation of his N$5 000 bail following his re-arrest last Tuesday started at 14:30 on Friday in the Okahandja Magistrate's Court. The court finally adjourned at 19:30.
The pastor, who leads a church in Vyfrandkamp, is accused of raping his daughter from the time she was 14.
He has, thus far, been charged with five counts of rape and one of incest. She in turn, has been charged with concealment of birth, after allegedly aborting a baby fathered by her father.
She was arrested on 3 June and was released on a warning. Her matter postponed to 28 June. The pastor was arrested on 2 May and was granted bail on 20 May after formally applying to be released. He was re-arrested last Tuesday.
According to the public prosecutor Veruka Njembo, the pastor had contravened one of his bail conditions - that of contacting his daughter. Njembo told Magistrate Khaepriums Swartz that he had called her and taken her to a local grocery store. The suspect had allegedly purchased food for her and “begged her to withdraw the charges”.
It was the Okahandja Residents Committee that brought this to the attention of the authorities. The group was present in the gallery packed and also handed a petition with 161 signatures, which opposes the release of the pastor, to the magistrate. Appearing on behalf of the pastor, Ileni Gebhardt told the court the matter had no “foundation in law”, adding that the State “brings the application (for the revocation of bail) with dirty hands”.
What followed can only be described as chaos, with erroneous court records and missing documents being the order of the day.
Gebhardt raised four points in limine, digging into the court record of the hearing last Tuesday when the pastor was re-arrested. That day the matter was heard before Magistrate Leonard Mateus with prosecutor Oscar Simvula acting for the State. According to the record, the court endorsed and granted the warrant of arrest in terms of section 66 (1)(2) of the Criminal Procedure Act (CPA) of 1977.
“The warrant of arrest was issued in terms of a section that does not exist. It is flawed. The court had no authority to issue a warrant in terms of a section that does not exist,” Gebhardt said.
Alternatively, she said, should the court grant that the record contains typographical errors, the State had one of two options.
If the accused is not present, in terms of the CPA, the arrest warrant can be issued. If the accused however, is present, the State should have brought an application to lead evidence as to why bail must be revoked and the arrest warrant endorsed, the defence attorney argued.
This, Gebhardt held, was not done. She also alleged that her client was arrested before the warrant was endorsed, according to the time on court record.
Njembo responded that the current hearing was precisely to lead evidence as to why bail should be revoked. He said the allegations of breach of bail conditions were brought to his attention on 7 June. “The application to lead evidence into why the bail must be revoked was made on 10 June at 09:30”, when the arrest warrant was endorsed by Mateus, he said.
Moreover, he read from the court record, as far back as 20 May, showing that it was fraught with errors.
“I will not hammer on the wording per se, where it is clear what was intended.”
He continued by saying that the pastor was arrested when he reported to the police station at roughly 08:00, as per his bail conditions, and said he would not comment on the matter as the warrant was to be executed “on sight”.
“The violation is very serious as it goes to the root of perverting the ends of justice.”
Gebhardt jumped up and objected.
“It is dangerous to speak for what the court intended. The prosecution cannot speak for Magistrate Mateus. It is opportunistic and misleads the court.”
Magistrate Swartz, who was visibly agitated, asked counsel to show him the arrest warrant. Njembo insisted it was included in the court record, which was with Swartz. The magistrate challenged him to find it, handing him the record.
The court had to adjourn to find the warrant of arrest as Swartz indicated he could make no ruling without seeing the document.
The court buildings became a hive of activity, and after about 15 minutes, the document was finally found, attached to the court record of an entirely different matter.
Swartz returned to the bench, and put the arrest warrant on record.
The time on the warrant indicated that the pastor was arrested at 10:15 and Gebhardt put it on record that her client does not agree with that time.
Swartz then made his ruling saying that he could not entertain the points in limine raised by the defence.
“I cannot review or set aside decisions made by another magistrate.”
He said that should he uphold the points in limine he would be acting as a review court which he could not do. Only the High Court can review decisions made by a magistrate's court or Magistrate Mateus should review his own ruling. The matter, he said, should be heard by Mateus and the points raised before him.
This ruling effectively declared Friday afternoon's proceedings null and void and put the legal teams back to square one.
“On the basis of which law should I remand the accused in custody?” Swartz asked.
Njembo asked for an adjournment to prepare arguments in this regard, which the magistrate granted, and while counsel wanted to consult him in chambers, he refused.
The court finally adjourned for the day at 19:30, with the bail of the pastor extended. He was released. The matter will be heard again on 21 June by Magistrate Mateus.