CASE NO: CA 46/2008

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

DUDLY
OCHURUB APPELLANT

and

THE STATE RESPONDENT

CORAM:
DAMASEB, JP et
MAINGA, J

Heard
on: 04 July 2008

Delivered on: 04 July 2008

APPEAL
JUDGMENT

DAMASEB,
JP
[1] This is an appeal against a magistrate’s refusal to grant the
applicant bail. He is accused of raping a 20 year old married woman
in that he, using a knife and a broken bottle, threatened the
complainant into submission and had sex with her against her will in
a riverbed. He is a 19 year old school leaver, unemployed and lives
with his sister and her husband. He denies the charge of rape and
pleads alibi which was backed up under oath by his sister.

[2] The bail was opposed on
the grounds that he would, if released, interfere with witnesses and
that the complainant fears for her life if he is released because of
the threats he allegedly made to her while allegedly raping her. It
was also said that the investigation has not yet been completed. The
fear of interference is based on an allegation the investigating
officer, one Hafeni, says was made to her by the complainant’s
mother to the effect that after the accused was arrested, his then
lawyer, Mr Murorua and the sister of the appellant, went to the
complainant’s mother’s home and asked her that the complainant
withdraw the case. The appellant said he was not present and did not
instruct his lawyer or sister to take that action.

[3] Complainant’s sister,
one Xoagoses, testified that indeed she went with Mr Murorua to
complainants’ mother’s home and that the lawyer went there to ask
if the complainant could accompany him to the police station to
identify the appellant. The complainant said she was at home when
this visit took place but said that she never heard the conversation.
The complainant’s mother was never called to verify the allegation
of interference and Hafeni’s testimony is therefore hearsay. I am
unable to find on the record any evidence that the appellant
interfered with the witnesses or that he would interfere with the
police investigation. The magistrate’s finding that the accused
interfered with the complaint and that he might interfere with the
police investigations was therefore unsound because it was not
supported by the evidence.

[4] As I already said, one of
the grounds on which bail was opposed was that the investigation had
not yet been completed. The investigating officer said under oath
that she needs 2 – 3 months to complete the investigation,
including investigating the appellant’s alibi. The application for
bail was heard and refused on 15 April 2008. Today is 4 July 2008 –
i.e. less than 3 months since the application was refused. The
magistrate also relied on the ground that the investigation had not
yet been completed in refusing bail. (See record p.67) He was
however wrong to conclude that bail could not be considered in future
if circumstances changed.

[5] I accept that the
appellant took the view that appeal was the only avenue open to him
in view of the magistrate’s conclusion that bail would not be
considered at any stage in the future. As I said, the magistrate was
plainly wrong in that regard. The appellant would be entitled to
approach the magistrate’s court if there is a change in
circumstances that justifies his being admitted to bail – such as
that the investigation had been finalised in the meantime or that the
evidence on the docket shows that the state’s case is not as strong
as it is made out to be.

[6] In S
v Brown
2004 (8) NCLP 1, paragraph 19, a judgment by myself and Silungwe J
concurring it is stated:

“It
is settled law that this Court’s powers are limited when sitting as
a Court of appeal against a magistrate’s refusal to grant bail.
The exercise of the magistrate’s discretion in a bail application
is one this Court is not to interfere with lightly; especially not on
the basis that it holds a view different from that which the
magistrate formed based on the evidence that was led before him or
her. It is only if that discretion had been wrongly exercised that
this Court would be free to interfere.”

[7]
In terms of s61 of Act 51 of 1977:

“If
an accused who is in custody in respect of any offence referred to in
Part IV of Schedule 2 applies under section 60 to be released on
bail in respect of such offence, the court may, notwithstanding that
it is satisfied that it is unlikely that the accused, if released on
bail, will abscond or interfere with any witness for the prosecution
or with the police investigation, refuse the application for bail if
in the opinion of the court, after such inquiry as it deems
necessary, it is in the interest of the public or the administration
of justice that the accused be retained in custody pending his or her
trial.”

[8]
Considering that the appellant’s defence is an alibi, which is
backed up by his sister who had been part of an attempt to get the
complainant (at the very least) to exonerate the appellant, I cannot
say that the magistrate was wrong in coming to the conclusion that
before the investigation is completed, it would not be in the
interest of the administration of justice to admit the applicant to
bail at the time the application was made. The appellant had failed
to show that the magistrate was wrong in coming to that conclusion.

[9] In the
result the appeal is dismissed.

________________

DAMASEB, JP

I
agree

________________

MAINGA, J

ON BEHALF OF THE
APPELLANT: MR B ISAACKS

INSTRUCTED BY: ISAACKS &
BENZ INC.

ON BEHALF OF THE
RESPONDENT: MRS S MILLER

INSTRUCTED BY: OFFICE OF THE
PROSECUTOR-GENERAL