Namibia: No Bail for Sexagenarian Pending Appeal

11 December 2018

Windhoek — Acting Windhoek High Court judge, Ileni Velikoshi, last Thursday denied 66-year-old farmer, Willem Visagie Barnard, bail pending the finalisation of his appeal hearing on a conviction of murder and 10 year sentence for killing his wife at their farm in the Mariental district.

Barnard was found guilty by Windhoek High Court Judge Naomi Shivute of killing his 55-year-old wife, Anette Barnard, with a single gunshot wound to the head at the couple's farm, Choris in the Aranos area in April 2010. Judge Velikoshi says there is no doubt that Barnard was convicted of a serious crime, a murder committed within a domestic setting which in itself aggravates his case. "What is even more aggravating is the fact that the applicant was in a domestic relationship with the deceased," Judge Velikoshi said.

He continued that he does not think that the legislature has intended to elevate the threshold in bail applications pre-conviction (pending trial), higher than in post-conviction bail applications.

" In my view, the legislature could not have intended to suggest that a more liberal approach and less stringent test be applied on those who were tried and convicted of very serious offence, says he, adding that while courts might lean in favour of granting accused persons bail pending trial, where they are presumed innocent until proven guilty, in instances where an applicant is already convicted and sentenced, this presumption of innocence falls by the wayside. He says the law considers him a criminal unless he succeeds to upset the conviction on appeal. "There is an upsurge of cases on domestic violence resulting in death," the judge says, going on that these cases concern men much less as they concern women behaving violently. "The applicant was convicted of murder with direct intent. It is both in the interest of the public and that of due administration of justice that those convicted and sentenced for committing serious violent crimes serve their sentences. To have an accused convicted of a serious and violent crime of murder with direct intent read with the provisions of the Domestic Violence Act roaming freely albeit within the confines of his farm boundaries, would bring the administration of justice into disrepute," the judge remarks. While accepting the applicant has reasonable prospects of success on appeal as was found by the Supreme Court on petition, it is not a remote possibility that the conviction may be confirmed on appeal and if that should occur, he would only have been less than two years into his sentence of 10 years. Judge Velikoshi adds that the applicant failed to show on a balance of probabilities that his admission on bail would not frustrate the interest of the due administration of justice and public interest which requires that he prosecutes his appeal whilst in custody.

Advocate Louis Botes appeared on behalf of Barnard and Advocate Palmer Khumalo represented the state.

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