The matter of 11 Chinese, one Cuban and three Namibian citizens, who were allegedly brought before the court only after the expiry of the 48-hour rule, was sent back to the Windhoek Magistrate’s Court for determination.
Windhoek High Court acting judge Philanda Christiaan, in concurrence with judge Naomi Shivute in a special review, directed that the magistrate who first presided over the matter or an alternative magistrate must urgently determine the accused person’s objection in terms of section 50 of the Criminal Procedure Act.
The accused – Toivo Herman, Fan Jia, Guo Linjie, Tango Muulyau, Haifeng Zheng, Li Zirian, Shi Zi Jun, Lin Shu Lin, Chen Wuyu, Neng Jun Wu, Wu Weiyang, Chen You Yi and Carlos Alejandro Batista Valdes – represented by Gilroy Kasper – and Mdanda Mamelodi Domingo – represented by Kadhila Amoomo – claim they were arrested on 3 October, but that they were brought to court only on 6 October – outside the 48-hour threshold.
Their legal representative then approached the High Court on an urgent basis, but judge George Coleman declined to rule on the application, as another court was already seized with it on special review. Judges Christiaan and Shivute found that the magistrate committed an irregularity by not affording the accused persons the opportunity to be heard before deciding.
“It is safe to conclude that the learned magistrate’s failure to afford the accused persons an opportunity to cross-examine the witness under oath and its failure to allow the accused persons an opportunity to present their side of the story amounts to an irregularity that destroys the foundation of the decision, as the decision would remain unsupported by evidence, which is sufficient to justify the final decision arrived at, which is the order by the magistrate, directing the accused to bring an application on the same issue already ruled on, as he is functus officio and order by a subsequent magistrate to postpone the matter on an issue already ruled on,” the judges stated.
They set aside the orders of magistrate Dawid Mukuyu that were given on 6 October, and that of magistrate Jozanne Klazen on 19 October, and directed that Mukuyu must hold a special review as soon as possible.
Yesterday, the matter came before Mukuyu for special review, but control prosecutor Seredine Jacobs asked the court for a postponement, as the witness is on leave and will be available only on 27 December.
Kasper and Amoomo, however, vehemently objected to the lengthy postponement and argued that the witness could be ordered by the court to appear, suggesting 18 December as a suitable date for the special review.
The magistrate agreed and set the hearing for Monday. The accused are facing, among others, 98 counts of trafficking in humans, one count of fraud, one count of money laundering, one count of racketeering and one count of failure to pay tax.
They are also charged with contravening the immigration law by overstaying in Namibia, working in Namibia without a permit and entering Namibia without a permit.
The accused remains in custody.
- rrouth@nepc.com.na