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February application for discharge dismissed

2018-08-24  Roland Routh

February application for discharge dismissed

WINDHOEK - Windhoek High Court Judge Naomi Shivute on Tuesday dismissed an application by South African national Wilhelm (Wimpie) Derick February, 39, that murder and rape charges against him be dismissed for lack of evidence.

Judge Shivute said that questions were raised during the trial that need answering by February. “The evidence adduced by the State is not of such poor quality that no reasonable court may convict. I am satisfied that the State has established a case to answer against the accused on both counts,” she stated.

February was before Judge Shivute in the Windhoek High Court on Tuesday on one count of murder, one count of rape  and alternatively crimen injuria.

He pleaded not guilty to both counts at the start of his trial and did not furnish a plea explanation and his State-funded lawyer, Mbanga Siyomunji, told the court the pleas are in accordance with his instructions and the basis of the plea will become apparent during trial.

However, during the cross-examination of two of the prosecution witnesses, Siyomunji put it to them that February’s defence is that he was not at the scene when the deceased was killed.   

The State alleges February killed 56-year-old Dinah Diedericks on June 21, 2014 at her residence in Windhoek West after he raped her or exposed her private parts by removing her trouser and panties.

While there is no eyewitnesses in the matter, the judge said, it is common cause that February was the last person seen in the company of the deceased after they were dropped at her home. The deceased’s DNA was found on the jacket of the accused and while his explanation for this is that he broke up an altercation between the deceased and her friend which caused her nose to bleed, witnesses disputed this, Judge Shivute remarked. 

She went on to say that regarding when the accused was left with the deceased, his contention is that she lost her home keys and he decided to remain behind as he was concerned about her safety, but he later on left on the insistence of the deceased. 

These are not the actions of one who is concerned about the safety of a friend, the judge remarked off the cuff. 
She further said the State had led direct evidence incriminating the accused. “Although the accused gave instructions on how the deceased’s DNA came on his jacket and the reasons why he left the deceased alone, if he was so concerned about her safety, the value to be afforded to what he said and its reliability may only be determined if it is tested through cross-examination.”

The judge further said although there is no evidence proving rape, there is evidence from the deceased’s daughter and a friend that they found the deceased’s body lying naked, but covered with a jacket, which amounts to the alternative count of crimen injuria. Her head was wrapped in a plastic bag, Judge Shivute remarked.   

She noted that while a court has the discretion to discharge at the end of the State’s case or not, the criterion to be followed is whether there is no evidence on which a reasonable court acting carefully may convict. Credibility of witnesses plays a very limited role at this stage, the judge said and continued: “It is a consideration whether there is a reasonable possibility that the defence may supplement the State’s evidence, but the right of an accused not to incriminate himself as enshrined in the constitution must be taken into consideration,” Shivute said before she dismissed the application and put February on his defence.

The matter will resume on February 20 next year with the accused set to testify in his own defence.
February will remain in custody at the Windhoek Correctional Facility’s section for trial-awaiting inmates.
Advocate Salomon Kanyemba is prosecuting.

2018-08-24  Roland Routh

Tags: Khomas
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