Court name
High Court Main Division
Case name
Kauejao v State
Media neutral citation
[1970] NAHCMD 204
Judge
Siboleka J










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


RULING:
APPLICATION FOR BAIL


CASE
NO.: CC 06/2014


DATE:
15 JULY 2016


NOT
REPORTABLE


In
the matter between:


STOCKLEY
KAUEJAO....................................................................................................APPLICANT


And


THE
STATE....................................................................................................................RESPONDENT


Neutral
citation: Kauejao v State (CC 06-2014) [2016] NAHCMD 204 (15
July 2016)


CORAM:
SIBOLEKA J


Heard
on: 15 April 2016; 29 June 2016


Delivered
on: 15 July 2016


Flynote:
Bail – Third application – fresh evidence – of
no connection not entirely correct.


Summary:
The deceased was investigating fifteen head of stolen cattle when
he was allegedly killed by being grabbed, throttled, sand put in his
mouth to stop breathing. His body and vehicle were burnt out to avoid
detection.


Held:
A prima facie case requiring an answer from the accused is
present.


Held:
In the result the application for bail is granted.


ORDER


In
the result the application for bail is granted.


RULING:
BAIL APPLICATION


SIBOLEKA
J:


[1]
At the hearing of this application the applicant was represented by
Mr. Makando and Mr. Lisulo appeared for the respondent.


[2]
The applicant and three others are facing charges of murder, theft:
read with the provisions of Act 12 of 1990; defeating or obstructing
the course of justice. The incident took place in December 2012.


[3]
The matter has so far seen a substantial number of prosecution
witnesses testifying and cross-examined.


[4]
The first application for bail was made in the Magistrate’s
Court, Gobabis in 2013 and only accused 4 succeeded.


[5]
In 2014 the applicant launched his second application in this court
before my brother Liebenberg J, but was unsuccessful. This is his
third application for bail before this court.


[6]
He now cites the following factors which he describes as fresh
evidence:


The
first is that the prosecution has so far presented several witnesses
but according to him they all failed to connect him to any of the
allegations he is facing: In my view this is not entirely correct.


[7]
During the previous hearing when the applicant was denied bail,
mention was made about his two brothers residing abroad, one in the
United Kingdom and the other in Canada. The court then found that
there was a risk that if granted bail, the applicant may abscond.
This situation in my view has not changed.


[8]
The summary of substantial facts in terms of section 144(3)(a) of The
Criminal Procedure Act 51 of 1977 is that all four accused allegedly
acted in common purpose to steal fifteen head of cattle from the Farm
Rembrandt. These animals were taken to Farm Groot Ums in the
Leonardville area where accused 4 and his uncle were farming. The
owner of the cattle asked the deceased to investigate the theft of
his cattle and the appellant together with accused 2 and 3 allegedly
agreed to kill the deceased to prevent detection of the stolen
cattle. This allegedly resulted in accused 2 and 3 killing the
deceased by strangling him and or throwing sand into his mouth to
prevent him from breathing. The deceased’s body and his vehicle
were later found burnt out.


[9]
Submitting before the ruling, Mr Makando, counsel for the applicant
stated that all crucial prosecution witnesses have since testified
but none of them has established a prima facie case against
the accused. This counsel urged the court not to ignore this
important factor in its consideration of the application for bail.


[10]
On his part Mr Lisulo, counsel for the prosecution submitted that
there is a prima facie case against the applicant and that it
will not be in the interests of the public and that of the
administration of justice to release the applicant on bail. Although
this counsel said there were still more than ten prosecution
witnesses, he did not deny Mr Makando’s contentions that all
crucial prosecution witnesses have so far testified
.


[11]
This only an application for bail and the court is precluded to
pronounce itself on the merits because that can only be done at the
end of the trial itself. It will suffice to state that so far there
is indeed a prima facie case that has been established.


[12]
After I have carefully listened to the evidence of the applicant
regarding his application for bail; the submissions for and against
his release on bail; the fact that a substantial number of
prosecution witnesses have testified; the fact that at this stage,
there is a prima facie case against him; conclusion that the
accused be released on bail with conditions.


[13]
In the result I make the following order:


The
matter is postponed to 18 July 2016 at 10h00 for continuation of
trial.


The
applicant (accused 1) is remanded in custody.


Bail
money in the amount of fifteen thousand Namibian Dollars
(N$15,000.00) is granted to the accused on the following conditions:


If
the accused pays the above amount he is warned to come to the High
Court (Prison) on 18 July 2016 at 10h00 for the continuation of the
trial and to remain in attendance until excused.


The
accused should not leave the Magisterial District of Windhoek before
the finalization of this matter.


He
must report himself at Katutura Police Station, Windhoek as follows:


Mondays
:  08h00 in the morning


Wednesdays 
:  18h00 in the evening


Fridays
:  18h00 in the evening


He
must surrender his driver’s licence to the investigation
officer or to the prosecution counsel and is not allowed to apply for
the same before the finalization of this matter.


He
must surrender any travel document/passport in his possession, if
any, to the investigation officer or the prosecution counsel; and he
is not allowed to apply for any of such documents before the
finalization of this matter.


He
must not directly or indirectly make contacts with any of the
witnesses on this matter in any manner whatsoever.


It
is ordered that the bail conditions be placed before the Station
Commander, Katutura Police Station where the applicant will be
required to do the reporting during the course of the trial.


A
M SIBOLEKA


Judge


APPEARANCES


APPLICANT
Mr. S. S. Makando


Conradie
& Damaseb


RESPONDENT
: Mr. D. M. Lisulo


Office
of the Prosecutor-General, Windhoek