Windhoek
A former magistrate accused of raping two different women on two separate occasions is set to await his trial in detention unless his lawyer can convince the judge to allow him to appeal to the Supreme Court.
Windhoek High Court Judge Alfred Siboleka yesterday dismissed a bail appeal by Jaco Kennedy, who allegedly raped a 20-year-old woman in the early hours of December 31 last year while out on N$3 000 bail in relation to an incident in which he and a relative allegedly raped a woman they offered a lift to Otjomuise in January last year.
According to Judge Siboleka it is his considered view that it would not have been in the public interest for the magistrate to grant bail to the applicants in such circumstances.
He said Kennedy was already free on bail for a similar incident when he again was accused of rape.
According to the judge there was no misdirection in the magistrate’s refusal to grant bail to the appellant.
During the appeal Boris Isaacks, who represented Kennedy, argued that the magistrate erred when he overemphasised the strength of the State’s case at the expense of the personal circumstances of the appellant.
He further drew a comparison between the case of Epafraditus Ndokotora Unengu who was granted bail after a second rape charge was laid against him.
Unengu is currently serving a 12-year-sentence after he was convicted of one rape only.
According to Judge Siboleka he consulted the Unengu judgment, but did not follow it. He did not give any reasons.
The judge further said: “Strange communications to the complainant via her cellphone started immediately after the incident which shows a clear connection with the appellant’s arrest over this matter.”
“The trial court’s reasoning in that regard was genuine and cannot be faulted,” Judge Siboleka emphasised.
He went on to say the magistrate’s use of the words propensity to commit further offences was prompted by the repeat of sexual assault allegations against Kennedy while he was on bail on the same allegation.
Bail is just what it is, whether with or without conditions, Judge Siboleka said and added: “It was incumbent on the appellant to exercise some restraint in his further encounters with female persons.”
Kennedy is disputing the allegation, saying he never gave anyone a lift anywhere on that morning nor does he know the complainant.
The complainant however testified in opposition to bail in the magistrate’s court that Kennedy raped her after he offered her a lift to her workplace.
This is the second rape allegation Kennedy is faced with as he is also charged with rape in an incident that happened on January 3 last year.
In that incident Kennedy is charged together with a cousin of his, Ray Cloete, 30, for the alleged rape of a 43-year-old woman between the Windhoek Central Hospital and Katutura Intermediate Hospital.
After the appeal ruling defence counsel Isaacks said he was “shocked and disturbed to his legal core by the decision” and indicated he will file for leave to appeal to the Supreme Court as soon as humanly possible.
“It is strange that this matter has striking similarities with the case of Unengu – however it was consulted, but not followed,” Isaacks gave as his reason for his shock and dismay at the ruling of the High Court.
He further said that if leave to appeal is refused, he will petition the chief justice directly.