Zorena Jantze
DR MacAlbert Hengari and his co-accused, aged 30, have indicated that they will apply for formal bail after once more having their hopes of attaining liberty dissipate, as Magistrate Monica Andjaba threw out an application by the two to have their charges quashed.
The two were jailed in late April for attempting to pay a bribe to a 21-year-old woman who accused the former minister, Dr Hengari, of rape. They face charges of obstructing the course of justice, read with provisions of the Riotous Assemblies Act, as well as corruptly giving gratification as inducement, incitement to commit an offence of compounding, and contravening Section 34 of the ACC Act of 2003.
Magistrate Monica Andjaba, in her ruling, said that while Hengari’s lawyer, Patrick Kauta, initially argued that his client has not been formally charged with rape and thus cannot be charged with bribery for a case that does not exist, the court held that the accused does not have to be charged with the initial or underlying offence of rape to be charged with obstruction of justice, which can occur before a person is formally charged.
She added that the State is the dominus litis in the matter and that the power to choose the charges the accused may face rests in the hands of the prosecution, not the court.
“The application to quash the charges is premature. The State should be allowed an opportunity to prove those allegations. It would be ill-advised, and probably hazardous, for this court, based on the A1 statement, to determine the matter to finality without having afforded the State its basic and procedural right to lead evidence in proof of the allegations. As cited in the above-referenced matter (State vs Conradie and Another), whether the State should withdraw charges against the accused persons is to be decided at the appropriate juncture and not at this present moment. To do so otherwise might constrain the free flow of evidential material, which the State is at liberty to lead and prove. I find that to make this decision to quash the charges because the charge sheet does not contain the charge of rape and that the charge of obstruction or defeating the course of justice cannot stand independently without the charge of rape would be premature, unjust, and unfounded, and may endanger the interests of justice and fairness,” Andjaba said, dismissing the application to quash the charges.
After reading the judgment, the magistrate inquired why the accused have not brought a formal bail application. To this, the State added that investigations are finalised for plea in terms of Section 119, but it objects to the granting of bail, as the State has a strong prima facie case against the accused and fears that the accused may interfere with State witnesses.
Lawyer Mekumbu Tjitere from Dr Weder, Kauta & Hoveka Inc, representing Dr Hengari, however argued that it would be impossible for the accused to interfere with State investigations which have been completed, as witnesses’ statements have already been taken and it would be difficult for witnesses to change their statements made under oath due to interference from the accused.
The matter was postponed to 21 July for plea, and the lawyers for the accused indicated that they would liaise with the State to set a date for a formal bail application.
