Court name
High Court Main Division
Case number
CC 4 of 2011
Title

S v Mbok and Others (CC 4 of 2011) [2013] NAHCMD 175 (10 June 2013);

Media neutral citation
[2013] NAHCMD 175
Coram
Ndauendapo J













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








RULING



Case no: CC 4/2011








In the matter between:








THE STATE








and








1. ANTOINE MBOK



2. M FINANCE (PTY)
LTD, a corporate body, duly registered as such in accordance with the
Laws of Namibia;
represented by ANTOINE MBOK



3. DANIEL DAVID
NGHIWILEPO








Neutral citation:
State v Mbok (CC 4/2011) [2013] NAHCMD 175 (10 JUNE 2013)








Coram: NDAUENDAPO
J



Heard: 28 May 2013



Delivered: 10 June
2013










ORDER










In the result, the
application is refused










JUDGMENT










NDAUENDAPO J [1]
Before me is an application, brought by the state in terms of section
62 (1) of the Criminal Procedure Act 51 of 1977, as amended, to add
further conditions of bail in respect of accused 1.








Background








Accused 1 and 2 others
have been arraigned before his court on five counts of corruption and
four counts of money laundering involving an amount of
N$3,944,631.64. On 19 November 2010, accused 1 was granted bail by
the magistrate court of Windhoek in the amount of N$3 000 subject to
one condition, namely, ‘accused must not interfere with any
state witnesses or any investigations in an manner whatsoever’.
The state is not happy with that and wants the following bail
conditions to be added:



(a) Accused 1
should report to the Office of Anti-corruption Commissiion (ACC) in
Windhoek three times in a week. Once every Monday between 08:00 and
17:00, once every Wednesday between 08:00 and 17:00 and once every
Friday between 08:00 and 17:00.



(b) Accused 1 should hand
over his passport to the investigating officer on the day the order
is made by the court.



(c) Accused 1 should not
apply for a passport or any travelling document until this case is
finalized.



(d) Accused 1 should
notify the investigating officer whenever he wants to leave the
district of Windhoek to travel to the other parts of the country.’



Accused 1 opposed the
application. Mr Nyambe appeared forhte state and Mr Uirab for accused
1.








THE LAW








Section 62(1)
Provides:








Any court before
which a charge is pending in respect of which bail has been granted,
may at any state, whether the bail was granted by that court or any
other court, on application by the prosecutor, add any further
condition on bail –








(a) with regard to
reporting in person by the accused at any specified time and place to
any specified person or authority;



(b) with regard to any
place to which the accused is forbidden to go;



(c) with regard to the
prohibition of or control over communication by the accused with
witnesses for the prosecution;



(d) with regard to the
place at which any document may be serviced on him under this Act;



(e) which, in the opinion
of the court, will ensure that the proper administration of justice
is not placed in jeopardy by the release of the accused.”








[2]
Section 62 (1) should be read together with Section 63 of Criminal
Procedure Act
1,
which reads as follows:









  1. Any court before which a
    charge is pending in respect of which bail has been granted may,
    upon the application of the prosecutor or the accused, increase or
    reduce the amount of bail determined under s 59 or 60 or amend or
    supplement any condition imposed under s 62, whether imposed by that
    court or any other court, and may, where the application is made by
    the prosecutor and the accused is not present when the application
    is made, issue a warrant for the arrest of the accused and, when the
    accused is present in court, determine the application.



  2. If the court referred to
    in ss (1) is a superior court, an application under that subsection
    may be made to any judge of that Court if the Court is not sitting
    at the time of the application.









[3]
BASIS OF THE
APPLICATION








According to counsel
for the state, the basis of the application is as follows:








(1) Accused 1,
unlike his co-accused is a foreign national from Cameroon. He was
issued with a Cameroonian passport on the 19
th
of December
2011 after he was granted bail on the 19
th
of November
2010. This shows that he applied for a Cameroonian passport after he
was released on bail. See attached (
Annexure
A2, copy of passport
)2.








(2)
He is married to a Namibian citizen which entitles him to live in
Namibia. See attached (
Annexure
A3, marriage certificate
)
and (
Annexure
A4, copy of identification document of his wife
).
It is respectfully submitted that his marriage to a Namibian does not
prevent him leaving or fleeing the country because he has a valid
Cameroonian passport.








(3)
He indicated in his motivation letter dated 14 January 2013 for
multiple re-entry VISA addressed to the Ministry of Home Affairs that
he owns businesses in Botswana, South Africa and Cameroon. See
attached (
Annexure
A5, motivational letter for a return visa
).








(4)
He has travelled out of Namibia three times since his release from
bail. He left the country to Botswana on 24 June 2012 and came back
on 26 June 2012. He then left the country on 10 November 2012 with
South African Airways via South Africa to Cameroon. He arrived back
from Cameroon via South Africa on the 9
th
January 2013. He left the
country again on 26 January 2013 with South African Airways via South
Africa to Cameroon. He arrived back from Cameroon via South Africa on
the 7
th
of March 2013. See
attached (
Annexure
A6, printout from Border Management System of the Ministry of Home
Affairs as well as Annexure A2, copy of his passport
).”








[4] Counsel for the state
further submitted that circumstances have changed because accused 1
has a foreign passport, has business interest in Cameroon, Botswana
and South Africa and he has become a frequent traveler. According to
counsel he is facing serious criminal charges of which he is likely
to be sentenced to a custodial sentence if convicted.








[5] Counsel for accused 1
submitted that accused 1 is married to a Namibian woman and has 13
minor children who are financially dependent on him for their
survival and maintenance.








[6] Although
circumstances may have changed, like accused 1 having been travelling
out of the country on several occasions, it has not been shown that
the proper administration of justice has been placed in jeopardy or
will be placed in jeopardy if the status quo remains as far as the
bail conditions of accused 1 are concerned. Since his release on bail
in 2010 accused 1 has been attending court sessions. The Cameroonian
passport was issued to him in December 2011 already. He had travelled
three times out of the country since his release on bail, but each
time he has returned to Namibia. He travels to Botswana, South Africa
and Cameroon for business purposes. He is a self employed businessman
marketing satellite television equipment which he procures in
Botswana and sell in Namibia. The income that he generates from his
business is vital for maintaining and supporting his family. His wife
is a Namibian citizen and his 13 minor children all reside here in
Namibia. He has been living in Namibia for 10 years and has applied
for Namibian citizenship and is awaiting an answer from the Ministry
of Home Affairs. In addition he owns substantial immovable properties
in Arandis, Okahandja and Windhoek. In addition the trial has not
started and as a result no evidence has been adduced in this court to
show whether there is prima facia case against accused 1 or
not.








At this stage the court
is not satisfied that a case has been made out to sustain the
application.








----------------------------------



GN Ndauendapo



Judge













APPEARANCES








STATE : MR NYAMBE



Of the Office of
Prosecutor General








ACCUSED: MR UIRAB









1Act
No. 51 of 1977 as amended





2Annexures
A2 – A6 are annexed to the application by the state.