A former magistrate who is accused of raping two women has asked Windhoek High Court Judge Marlene Tomassi to allow him to appeal her refusal to grant him bail in the Supreme Court. 
Tomassi refused to release Jaco Kennedy in July last year, saying he was facing serious charges, while she also feared the accused will interfere with witnesses. 

His lawyer Boris Isaacks then lodged an application for leave to appeal the decision in the Supreme Court claiming that the judge was mistaken in her findings. 

The State represented by Innocencia Nyoni opposed the application, saying the conclusion reached by the judge was based on the totality of the evidence and that there are no prospects that another court will come to a different conclusion. 
Kennedy claimed the judge failed to properly evaluate new evidence in the form of social media interaction between himself and the second complainant to show that a relationship existed between them prior to the alleged rape incident. 

Nyoni, however, said that it is evident from the bail ruling that Judge Tomassi considered all the submissions made regarding the social media communication does not constitute new facts which is a requirement for a new bail application. 

“There is merit in the submission of the State that the version presented by the applicant is not new in that the applicant must have known that he had consensual sex with the complainant right from the beginning. This was never put to the complainant when she testified in the first bail application. The applicant in fact denied having been with her that morning and offered an alibi. This was, in light of his current admission, a blatant lie,” Nyoni quoted from the judge’s ruling. 

Before his second arrest, Kennedy was out on bail of N$3 000 in connection with an incident in which he was charged alongside his cousin, Ray Cloete, for allegedly raping a woman they had offered a lift in January 2015. 
In the first incident, Kennedy is charged together with Cloete (31) for the alleged rape of a 43-year-old woman between the Windhoek Central Hospital and Katutura hospital. 

Kennedy, however, denied that he had intercourse with the complainant, but did say he and Cloete had a sexual conversation with her and he gave her N$200 to have sex with them. 
He was re-arrested for allegedly raping a 20-year-old woman in the early morning hours of 31 December 2017. 
The judge indicated she will deliver her ruling on the leave to appeal application on 5 March, while Kennedy will remain in custody.
- rrouth@nepc.com.na