Shipanga takes bail application fight to High court

• By Uaueza Kanguatjivi

A drug using mother of two, Jennifer Shipanga accused of murdering her 11-day old baby by bashing her head against a door has taken her bail application fight to the High Court where she is contesting a ruling by a Magistrate who threw out her bail application earlier this year.

Shipanga has been in custody for more than eight months after she allegedly murdered her 11-day-old baby, Magdalena Mweneni Shipanga in Katutura, on March 3 this year.

She was also charged on counts of attempted murder and assault with intent to do grievous bodily harm in connection with an alleged attempt to kill her son by strangling him and assault on her grandmother.

Presenting Shipanga’s defence at the High Court, defence lawyer, Jeremiah Machali noted that Shipanga was a good candidate for bail pending the finalisation of her trial while the State, represented by advocate John Kalipi argued that the Magistrate, while rendering her judgement on Shipanga’s bail application had not committed any misdirection of fact and of law and therefore the appeal should be dismissed.

“The court looks at the legal principles and bail is governed by section 60 of the Criminal Procedure Act 51 of 1977 where the accused can apply for bail in respect of such an offence. Every person has the right to be presumed innocent until proven guilty as contemplated in Article 12 (1) of the Namibian Constitution,

“The applicant for bail bears responsibility, specific obligation to prove on a balance of probabilities that he or she is a good candidate for bail, that is all mentioned in the case of S v Dausab 2011 (1) NR-232 High Court on page 235,” said State lawyer, Kalipi

He added that considering the appellant’s violent conduct took place in her grandmother’s home and attacking her own children of which one lost her life, hence granting bail would not be in the interest of the public as lives should be protected at all costs and the family was supposed to feel safe in their home.

In papers filed in the High Court, Kalipi said, “The learned Magistrate made a factual finding that the applicant had shown to the court that her drug usage had made her an unstable individual, incapable of caring for her children, and possibly being a danger to other persons around her.

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“The fear that the appellant would endanger her children or grandmother could not be cured by strict bail conditions considering what took place on March 3, that if the child and grandmother hear that the appellant is released on bail they would live in fear as a result of the attack they faced,” said Kalipi.

Appearing on behalf of Shipanga, Muchali said “there was no factual evidence that was presented to the court that granting bail to the applicant will not be in the interest of justice or that of the public.

According to him, the appellant raised a defence of non-pathological insanity that was caused by the use of cocaine and the combination of taking Antiretroviral treatment (ARVs or ART) medication on an empty stomach.

Furthermore, Muchali claims that the Magistrate failed to properly weigh on the strength and weaknesses of the state’s case.

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He said the decision of the Magistrate was wrong and should be set aside as since her arrest and incarceration, she has been attending counselling with social workers regarding her drug (cocaine) usage, at Katutura Hospital, she sought bail in order to undergo rehabilitation.

During her bail hearing in July, the court was informed that the killing of the Shipanga’s baby took place in the presence of her grandmother, who saw Shipanga hit the baby’s head against the door and strangling her 7 year old son until he was unconscious 

Shipanga informed the court during her bail hearing that after she had been discharged from the hospital where her daughter had been born on 20 February, she had a day-long cocaine spree and took ARV medication on an empty stomach.

Crying during her testimony, Shipanga told the court, “I started getting paranoid, hallucinating, seeing things, hearing people and I blacked out. I cannot remember what really happened that night.

“I was not myself. I was under the influence of drugs. I was depressed and I was stressed. I will never do anything to hurt my kids, never, never, never,” she added.

The case is postponed to November 28 for a ruling, and Shipanga was remanded in custody.