Court name
High Court
Case name
Kamoruao v S
Media neutral citation
[2011] NAHC 64

















CASE
NO.: CC12/2009









IN
THE HIGH COURT OF NAMIBIA








In
the matter between:











KAVIYENE
GERSON KAMORUAO
…............................................APPLICANT







versus



THE
STATE
…........................................................................RESPONDENT













CORAM:
SIBOLEKA,
J



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.







[2]
Before the commencement of the trial on this matter the applicant
applied for bail, but was refused. The trial had in the meantime
started and the State has lead all its witnesses. The matter has
since been postponed to the 1
st
of
August 2011 for the DNA test results. The applicant has availed
himself for samples to be taken but only his saliva was taken and he
has co-operated in that regard. This was confirmed by the State
counsel, Ms. Esterhuizen during the proceedings.







[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.




  • The
    applicant has spent three years and some months in prison, and in
    addition to that the matter will only proceed from the 1
    st
    of
    August 2011 on the request of the State.












[4]
I am nonetheless in agreement with what was stated by Maritz, J as
he then was in
State
v Thomas Paulus Namundjebo
Case
No. 36/98 where he stated that:



"The
presumption of innocence ... operates in favour of the applicant in
a bail application - even where it is said that there is a strong
prima
facie
case
against 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.











[8]
The applicant also called his sister, Jackeline Zaongara who
testified that the applicant comes after her and that she was
prepared to stay with him at House No. 2209 Kamberipa Street, Herero
Location, Katutura, Windhoek, when his case resumes on the 1
st
of
August 2011. She confirmed that if need be she was prepared to bring
the applicant in a taxi to Court and then go to work. Ms.
Esterhuizen on behalf of the State, opposed the application and in
the main, she stated that:












  • 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.



The
trial will only resume on the 1
st
of
August 2011, and there is no guarantee whether the DNA results will
be available then, leaving room for a likelihood of another request
for postponement.











[11]
It is my considered view that the State has not been able to show
cause why the applicant should not be admitted to bail on this
matter. I am persuaded by the remarks of Muller, J, in
S
v Issack
1965(2)
SA 161 (D) at page 162 C, where it was stated that:











"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."







[12]
In the circumstances of this matter, I am persuaded to accept what
the applicant placed before Court that as of now he will stay with
his mother at Okakarara and later when his trial resumes on the 1
st
of



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,
    should the above amount be paid, he is warned to be at Court on the
    1
    st
    of
    August 2011 at 10h00 and to remain in attendance until excused.




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.




  • That
    the applicant should continue to observe the above conditions until
    he leaves Okakarara for the resumption of his trial in Windhoek on
    the 01
    st
    of
    August 2011 and should inform the Charge Office Sergeant
    accordingly.




[14]
That when the trial resumes in Windhoek on the 1
st
of
August 2011 the applicant must start reporting himself to the Charge
Office Sergeant at Wanaheda Police Station on the following days and
times:




  • 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











ON
BEHALF OF THE APPLICANT:

MR.
UIRAB







LEGAL
AID



ON
BEHALF OF THE RESPONDENT: ADV. ESTERHUIZEN







INSTRUCTED
BY: THE OFFICE OF THE PROSECUTOR-GENERAL