A FORMER magistrate facing several charges of rape and kidnapping is now fighting to have his trial in the Windhoek High Court kept on hold while he pursues a legal challenge against the prosecutor general's decision to prosecute him.
The trial in which ex-magistrate Jaco Kennedy and a co-accused, Raymond Cloete, are due to be prosecuted on charges stemming from the alleged kidnapping and rape of two women in Windhoek in January 2015 and December 2015 was scheduled to start before acting judge Kobus Miller yesterday. The trial did not begin, though, and was instead postponed to Friday after Kennedy's defence lawyer, Boris Isaacks, indicated that he wanted to appeal to the Supreme Court against a ruling that acting judge Miller delivered in the case on Friday last week.
In that ruling, the judge dismissed an application by Kennedy to have the criminal proceedings against himself and Cloete put on hold pending the outcome of another High Court case, in which he is asking the High Court to give clarity on a number of questions around the prosecutor general's duties with regard to making decisions about the prosecution of people accused of having committed crimes.
Judge Miller dismissed Kennedy's bid to have his criminal trial put on hold after noting that in Kennedy's pending case about the PG's duties he was not asking the court to set aside the PG's decision to charge him. If Kennedy had been asking for such an order in his other case, he might have been inclined to give an order putting the criminal proceedings on hold until the other case had been decided, acting judge Miller said.
Kennedy (32) and Cloete (33), who is a cousin of Kennedy, were first arrested and charged with rape on 3 January 2015, after they had been found at a scene where they had allegedly attacked a woman between Windhoek Central Hospital and Katutura Intermediate Hospital. The woman was allegedly attacked and raped after Kennedy and Cloete had offered to give her transport from Otjomuise to the Windhoek city centre.
Kennedy is charged with three counts of rape and charges of kidnapping, attempted murder and attempting to defeat or obstruct the course of justice in connection with that incident, while Cloete is charged with two counts of rape and a count of kidnapping.
The two men spent about a month in custody before being granted bail in an amount of N$3 000 each.
Kennedy was again arrested on similar charges a year later, after he allegedly picked up a woman waiting for a taxi to take her to her workplace on the morning of 31 December 2015 and drove with her to a spot where he allegedly raped her. He has remained in custody since his second arrest on 30 January 2016.
In the civil case that Kennedy filed at the High Court in January last year, he is asking the court to declare whether the High Court can review decisions made by the PG, whether the PG has a legal duty to give an accused person an opportunity to give written inputs before a decision about prosecuting the person is made, and if the PG should give written reasons to an accused person for a decision to prosecute the person.
An American citizen facing charges of murder and other alleged crimes in the High Court, Kevan Townsend, has also applied to be allowed to join Kennedy's case as a co-applicant.
Acting judge Miller postponed the case of Kennedy and Cloete to Friday to give Isaacks an opportunity to prepare an application for leave to appeal against his ruling of last week. Defence lawyer Milton Engelbrecht is representing Cloete. Deputy prosecutor general Innocentia Nyoni is representing the state.