Windhoek — Two judges of the Windhoek High Court this week dismissed the bail appeal by a Democratic Republic of Congo (DRC) national who is charged with robbery.
The accused has been languishing in jail for the past nine years waiting for his trial to start, after the Windhoek Magistrate's Court refused to grant him bail.
High Court judges Nate Ndauendapo and Christi Liebenberg, who heard the appeal, said the fact that the witnesses who had testified in his trial so far have not implicated Serge Wembondinga does not in itself mean that the witnesses who are yet to testify will not either.
Wembondinga based his bail appeal on the fact he was not implicated in the offence by the witnesses so far.
His second point, that his co-accused were all granted bail also do not hold water, the judges said, as it does not necessarily create an entitlement for him to be admitted bail.
"The court has a discretion to exercise and such discretion may not have the same result in respect of different accused persons, even those who are co-accused," the two judges emphasised.
On the grounds that he has a daughter from an Angolan woman, the judges were of the opinion that it is not a new fact as the girl was already one-year-old during his first bail application and as such there is no need to even go there.
Regarding the grounds that he is suffering from a medical condition called helicabacterybilon serology as a consequence of a motor vehicle accident while in custody, the judges stated that it is not clear whether he receives treatment, or even if he informed the prison authorities of any grievance he may have regarding their failure to ensure he gets the necessary treatment while in custody.
With regard to the fact he spent almost nine years in custody awaiting trial, the judges said Wembondinga's nationality is not proven, although he claims to be a native of the DRC and has relatives in that country, Botswana and the United States of America, and has no fixed assets or a fixed address in Namibia; and considering the seriousness of the offence he stands charged with and the absence of a valid permit to leave the Osire refugee camp, the decision of the magistrate cannot be said to be wrong.
In any event, judges Ndauendapo and Liebenberg stated, Wembondinga is entitled to bring an application for a Section 174 discharge at the end of the State's case if no evidence was adduced against him.
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 however refused on the grounds that he is a foreigner and has no fixed address in Namibia and is thus considered a flight risk.
It is alleged that 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 already sentenced to eight years in prison for the role she played in the robbery by magistrate Cosmos Endjala in the Windhoek Regional Court.
Wembondinga lodged two bail applications, the first in September 2009 which was refused on the grounds that it was not in the public interest and in the interest of justice, while the second bail application was brought seven years after the first one and was also refused.
Khadila Amoomo appeared on behalf of Wembondinga and State Advocate Erich Moyo for the State.