WINDHOEK – Two judges of the Windhoek High Court reinstituted bail of three suspected stock thieves after a magistrate at the small town of Karibib cancelled it after she recused herself from the case because she received a personal letter from one of the defence lawyers.
Judge Dinah Usiku and Acting Judge Petrus Unengu also ordered the trial of the three men should start afresh before a new magistrate.
Efraim Seibeb, Immanuel Tjimune and Kalima Shikongo stood jointly charged with the crime of stock theft alternatively possession of stolen stock. It is alleged that they stole three cattle or was found in wrongful and unlawful possession of stock where there was reasonable suspicion that it had been stolen and they were unable to give a satisfactory account for such possession.
According to the review judgment, it is evident from the record of proceedings that the accused appeared before the district court at Karibib where the case has been postponed on several occasions, first for legal aid and thereafter because the accused’s legal representatives were not at court due to various reasons. It is further stated that when the matter appeared on July 11 for plea and trial, the lawyers representing the accused persons were not at court and the matter was again postponed.
At the same occasion, the magistrate indicated that she wished to recuse herself from the matter due to a personal letter she received from one of the defence lawyers and such letter was disclosed to the prosecutor and was handed in as evidence.
The magistrate then proceeded to recuse herself from the matter and it was postponed to August 3, for plea and trial and the bail of the accused was extended. However, after the matter was postponed, the prosecutor brought an application for the cancellation of the accused persons bail before the same magistrate that recused herself from the matter for the reason that one of the State witnesses claimed to have received death threats from the accused persons and is unwilling to testify because of that.
The accused persons however all denied the allegation and consented to the court imposing additional restrictions on them, including an order that they are not to contact the witness concerned. The magistrate however proceeded to cancel the bail of the accused, which prompted the divisional magistrate at the town to send the matter on special review in order to seek clarity whether the presiding magistrate could still have proceeded with cancellation of the accused’s bail after her recusal.
Judge Usiku who wrote the unanimous judgment found that the divisional magistrate was right indeed and that after the presiding magistrate’s recusal she could no longer deal with the matter. For this reason, the High Court decided to set aside the order cancelling the bail of the accused and reinstated and extended the bail.