Windhoek
An application by the state-funded legal representative of one of three inmates accused of murdering a fellow inmate, to declare the proceedings of a bail application inadmissible as evidence in the ongoing trial, was dismissed on Monday.
Milton Engelbrecht wanted Judge Dinah Usiku to quash the evidence of a bail application of Benedictus Afrikaner, 29, made on July 12, 2013, on the basis it was obtained unprocedurally.
According to Engelbrecht, the constitutional requirements of his client were not met as he was not properly informed that what he was going to say during the bail application may be used against him in the main trial.
He further argued that the questioning by the public prosecutor during the bail hearing went beyond what is required of the State to prove during a bail enquiry.
State Advocate Ethel Ndlovu argued Afrikaner was fully informed of all his rights and understood them perfectly.
She further informed the court the accused was represented by legal counsel with whom he had proper consultations prior to the hearing of the bail application.
According to the judge, it is common cause the accused was legally represented during the bail enquiry.
She said he was advised on issues relating to self-incrimination and as such was aware of the consequences arising from his answers to the prosecutor.
“The accused was well aware of his case and had made up his mind and as such had raised a … private defence. It could therefore not be said that he had incriminated himself unknowingly,” the judge stated.
Judge Usiku found no fault that the prosecutor in the bail application inquiry had questioned accused number two regarding the charges he was facing in which he had gone to the extent that accused number two had to respond to.
In any event, she said, accused 2’s legal representative had fully consulted with him both prior and during the bail proceedings and the court was satisfied there was no violation of the accused’s constitutional rights whatsoever.
Afrikaner, Herman Rukero and Maleachi Seibeb, 48, is charged with murdering Eddy /Gomxob, 33, with the sharpened metal piece of a broom at cell 4 of the Maximum Security Unit (Unit 7) of the Windhoek prison, allegedly because of soured intimate relations between them.
It is alleged the trio stabbed /Gomxob at least 14 times with the self-made weapon and also stomped on his head and kicked him during the lunch hour on Wednesday January 18, 2012.
According to earlier news reports, /Gomxob and Rukero were involved in an intimate relationship, but Rukero had dumped /Gomgob and started a relationship with Afrikaner which did not go down well with /Gomxob.
/Gomxob was serving a sentence of 17 and a half years and Afrikaner was serving a sentence of three years and six months at the time of the incident, which prison term he has completed, but he remains in custody on the charges he now faces.
Rukero is serving a prison term of 19 years and Seibeb is serving a 28-year sentence.
The case is set down to continue from April 1 to 8 and the accused remain in custody.