Windhoek-A Democratic Republic of Congo (DRC) national charged with robbery, who has been languishing in jail for the past nine years awaiting the start of his trial, is appealing in the Windhoek High Court against the refusal by the Windhoek Magistrate’s Court to grant him bail.
High Court judges Nate Ndauendapo and Christi Liebenberg heard his appeal last Friday and indicated that the earliest they would be able to rule on the matter is July 28.
Serg Wembondinga, 38, was arrested on May 20, 2008 and remained in the Windhoek Correctional Facility’s trial awaiting section ever since. His seven co-accused, Abraham Ipuleni Daniel, Tuhafeni Matheus, Stefanus Ngiimbwasha, Sosthenus Weyulu Ngiimbwasha, Elifas Haitembu, Kangombe Nghilinganye and Elias Hangombe were all granted bail at their first bail application.
Wembondinga was refused bail on grounds that he is a foreigner and had no fixed address in Namibia and was thus considered a flight risk.
It was alleged the eight men held Poonja Azim at gunpoint and robbed him of US$145,000 at a guesthouse in Adler Street in Windhoek West on May 3, 2008.
A woman who pleaded guilty to the robbery, Elizabeth Shigwedha, was subsequently sentenced to eight years in prison for her role in the crime by Magistrate Cosmos Endjala in the Windhoek Regional Court.
Wembondinga lodged two bail applications, the first in September 2009 – which was refused on the ground that it was not in the public interest and in the interest of justice – and the second bail application, which was brought seven years after the first one, but was also refused.
According to Khadila Amoomo, who brought the appeal before the High Court, his client was not implicated by the complainant, who had already testified in the Magistrate’s Court. He argued that the magistrate in the bail application had erred in fact and law when he found the fact that the appellant was not implicated did not amount to a new fact, as well failing to take into account the medical condition of the appellant.
Amoomo said the learned magistrate had also erred when he refused to consider the imposition of conditions to curb the fear of absconding.
He further said the magistrate erred in law by not considering the fact that four of the appellant’s co-accused had already been granted bail, despite the fact that they were implicated by the complainant.
Amoomo submitted that the approach of the magistrate was full of unsupported assumptions and his decision to refuse bail on the ground of new facts was wrong and thus entitles the High Court to set it aside.
State Advocate Erich Moyo argued it is trite law that the High Court cannot interfere with decisions of the lower courts, unless such court or judge is satisfied the decision was wrong.
He said the trial court was “not in any manner wrong when it dismissed the appellant’s application for bail and, as such, nothing warrants the interference with the magistrate’s decision by the court of appeal.”