IN THE HIGH COURT OF NAMIBIA

In the matter between:

KAVIYENE GERSON KAMORUAO				APPLICANT

versus
THE STATE								RESPONDENT

Heard on:        	24 FEBRUARY 2011

Delivered on: 	10 MARCH 2011
JUDGMENT: BAIL APPLICATION SIBOLEKA, J:
[1] The applicant is charged with three counts of Rape, two counts of assault with intent to do grievous bodily harm and one count of indecent assault.

[3] At the start of the application Mr. Uirab who appeared on behalf of the applicant, raised what he referred to as fresh facts and these are:

•  The State's fear of a likelihood of the applicant interfering with State witnesses no longer exists because these have already all testified.
�	The second count of rape is weak, because the complainant did not know who raped her. She was drunk and unable to identify her assailant.
Latter the complainant happened to be in one of the offices at the police station when the accused and another person walked in at the gate. A police officer pointed at the accused through the window and asked the complainant whether it could be him who raped her or not, whereby the complainant said it was him.
�	

[5] The applicant testified that since his grandmother passed away last year things are in disorder, because he is the only son in the family, some of their animals have been stolen during his absence. He wants to stay with his mother at the stock houses at Okarakango Street, Okakango Location (an informal settlement in Okakarara). He pledged to report himself at Okakarara Police Station which is within walking distance should the Court make such an order.

[6] He is a mechanic and also does welding work. These will also keep him busy and enable him to generate money for himself.
[7] According to the applicant, even if the DNA results point him out as the person who raped the second complainant, he will still come and attend his trial.

�	The charges the applicant was facing are serious. There is a likelihood of a conviction and;
�	This may be followed/visited with a lengthy term of imprisonment.
�	That in the light of the above, the applicant may be tempted to abscond.

[9] The State counsel did not call witnesses to substantiate her fears, but only made submissions and referred to various authorities.

[10]   In my view Mr. Uirab has a point when he argues as follows:
�	The delay in finalizing the matter has been caused by the State when it opted to go for DNA tests at the very last moment after it has lead all the evidence, and that this could have been done right at the beginning. 
All State witnesses have finished testifying. 

"In dealing with an application of this nature, it is necessary to strike a balance as far as that can be done, between protecting the liberty of the individual and safeguarding and ensuring the proper administration of justice."

August 2011, he will reside with his sister here in Windhoek. There is no reason for me to doubt the testimony of the applicant and his sister, and I have no basis to anticipate that the applicant will abscond if released on bail.

[13]   In the result I make the following order:

�	That the applicant is in custody. 
Bail in the amount of N$3,500.00 is granted on the following conditions:
�	
That the applicant should then start to report himself to the Charge Office Sergeant at Okakarara Police Station on the following days and times:
Mondays, Wednesdays and Fridays between: 08h00 and 09h00 in the morning and between 18h00 and 19h00 in the evening.
�	

�	Mondays, Wednesdays and Fridays: between: 08h00 to 09h00 in the morning; and between 18h00 and 19h00 in the evening.

[15]   These bail conditions may be revisited at any time should such a need arise.

SIBOLEKA, J

LEGAL AID
ON BEHALF OF THE RESPONDENT:			ADV. ESTERHUIZEN

INSTRUCTED BY:						THE OFFICE OF THE 									PROSECUTOR-GENERAL