Swakopmund court ordered to redo pastor’s rape bail application

Sakeus, a pastor of Burning Fire Ministry church at Swakopmund, faces 11 counts of rape, five counts of kidnapping, two counts of assault by threat, and two charges of common assault.

He was arrested in November 2019 for allegedly assaulting, kidnapping and raping congregants. He did not get bail, and a formal bail application in May – based on new facts – was dismissed.

The state’s grounds of opposition to bail are: that the charges brought against the appellant are serious; the state opposed bail on grounds that the charges are serious and that they have a strong case against him; they fear he will interfere with state witnesses; that the complainant fears for her life; investigations are incomplete; and that it would not be in the interest of justice.

Sakeus appealed to the High Court against the dismissal, based on the fact that the magistrate erred when concluding that his application bore no new facts, without affording his lawyer the opportunity to lead evidence as Sakeus wished to do.

The new facts included that the investigations are finalised, there exists no threat of interference; that Sakeus has developed a medical ailment while in custody; that his personal circumstances have deteriorated exponentially over the past two to three years; and that the state has not established a strong case against him.

On 18 May, after the state made oral submissions pertaining to Sakeus’ intended formal bail application based on new facts, the magistrate indicated she wanted to peruse the record so that she can make a decision on whether to proceed or not with the new application.

It was also noted that the state “at the very last minute” decided not to call witnesses, but the defence intended to call two witnesses.

A day later, the expectation was that the bail application would start, but instead the matter was up for judgement without Sakeus or his lawyer being afforded the opportunity to call any witnesses and to make final submissions before the court would hand down its ruling.

The magistrate ruled that the judgement should not reiterate the same facts or issues that were already presented at the previous bail application, and that the factors do not warrant the court reopening the bail application that was previously refused, and the bail grounds set by the state were proved and still stand.

“So, based on that the court finds there exists no new facts and that the bail still remains the applicant is actually dismissed for bail application. . . . “ the magistrate had ruled on 19 May.

After hearing the appeal, Liebenberg and January ruled on 23 September that the presiding magistrate’s reasoning was wrong and her approach was procedurally flawed, and that she should have afforded both parties a hearing to allow for the parties to place all sufficient facts before the court and only after considering the evidence, together with the evidence offered during the first bail application, would the court be able to rule on the application brought on new facts.

“We find that the presiding magistrate erred when concluding that the appellant’s application bore no new facts without any evidence placed before the court by the appellant or by the state,” they ruled, concluding that Sakeus’s bail application is remitted to the court to allow him to lead evidence, based on new facts.

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