Court name
High Court
Case number
CC 28 of 2009
Title

S v Kumar Stanis (CC 28 of 2009) [2011] NAHC 223 (26 July 2011);

Media neutral citation
[2011] NAHC 223
Coram
Siboleka J























CASE NO.: CC
28/2009



IN THE HIGH COURT OF NAMIBIA



In the matter
between:








THE STATE








versus








ANTHONY SURESH
KUMAR STANIS …........................................ACCUSED








CORAM:
SIBOLEKA, J



Heard on: 14,
15 JUNE 2011



Delivered on:
26 JULY 2011



JUDGMENT:
BAIL APPLICATION



SIBOLEKA, J:



[1] The applicant,
a 34 year old Sri Lankan National, is accused no. 6 on the partly
heard criminal matter before this Court. He was the last to be
arrested after the other five suspects and are all facing the
following 1516 charges:








1. CONTRAVENING
SECTION 18(2)(a) OF THE RIOTOUS



ASSEMBLIES ACT
17 OF 1956 – CONSPIRACY TO COMMIT



FRAUD;








2. FRAUD



ALTERNATIVELY



THEFT








3 – 1033 (as
per Schedule 1). FRAUD



ALTERNATIVELY



THEFT








1034 – 1507
(as per Schedule 2). FORGERY








1508. THEFT



ALTERNATIVELY



CONTRAVENING
SECTION 8(1) OF ORDINANCE 12 OF 1956 –



USE OF PROPERTY








1509. THEFT



ALTERNATIVELY



CONTRAVENING
SECTION 8(1) OF ORDINANCE 12 OF 1956 –



USE OF PROPERTY













1510. THEFT



ALTERNATIVELY



CONTRAVENING
SECTION 8(1) OF ORDINANCE 12 OF 1956 –



USE OF PROPERTY








1511. THEFT



ALTERNATIVELY



CONTRAVENING
SECTION 8(1) OF ORDINANCE 12 OF 1956 –



USE OF PROPERTY








1512. CONTRAVENING
REGULATION 2(1) READ WITH REGULA-



TIONS 3(5) AND
22 OF THE EXCHANGE CONTROL REGULA-



TIONS, 1961,
PROMULGATED BY GOVERNMENT NOTICE



R1111 of 1
DECEMBER 1961, AS AMENDED – UNLAWFUL



BUYING,
BORROWING OF FOREIGN CURRENCY








1513. CONTRAVENING
SECTION 14(1)(a) READ WITH SECTION 91



OF THE CUSTOMS
AND EXCISE ACT 20 OF 1998 – NON



DECLARATION OF
GOODS








1514. CONTRAVENING
REGULATION 2(1) READ WITH REGULA-



TIONS 3(5) AND
22 OF THE EXCHANGE CONTROL REGULA-



TIONS, 1961,
PROMULGATED BY GOVERNMENT NOTICE



R1111 OF 1
DECEMBER 1961, AS AMENDED – UNLAWFUL



BUYING,
BORROWING OF FOREIGN CURRENCY








1515. CONTRAVENING
SECTION 14(1)(a) READ WITH SECTION 91



OF THE CUSTOMS
AND EXCISE ACT 20 OF 1998 – NON



DECLARATION OF
GOODS



1516. FORGERY
(OF A DRIVER’S LICENCE)








[2] Since their
arrest all six accused made various applications in the Magistrate’s
Court to be released on bail. Accused no. 6, the applicant before
Court was refused bail on the 31st of October 2008, while
no. 1 secured it in the amount of N$200,000.00 on the 12th
of December 2008. Accused no. 1 has been reported missing since the
18th of March 2009 to date. Accused no.’s 2, 3 and 5
were denied the same on the 31st of March 2009.








[3] This is the
applicant’s second application to be released on bail, and he
is represented by Mr. Namandje, Ms. Lategan, assisted by Mr. Moyo
appeared for the State.








[4] Bail is
opposed on the following grounds:



Fear of
abscondment, that the accused will not stand the rest of his trial,
the seriousness of the offence, the fact that if convicted he would
face a lengthy term of imprisonment, it would not be in the interests
of the administration of justice to grant bail to the applicant, it
is already a partly heard matter and if the applicant does not stand
the rest of his trial the state’s case, as well as the
administration of justice would be prejudiced. It would also not be
in the interest’s of the public that he be granted bail.



Ms. Lategan said
the applicant should not repeat the same facts that were already
placed before another Court. She said such an exercise would be an
abuse of process which should not be entertained. In the end, she
said the Court should consider both new and old facts in totality to
arrive at a conclusion. She said evidence which was there at the time
of the first application, but for whatever reason was not revealed
(placed) before Court cannot be relied on in the latter application
as new facts or evidence.








[5] Before calling
the applicant to testify, Mr. Namandje said he preferred the term
‘changed facts’ instead of new facts alluded to by Ms.
Lategan. He said when the Magistrate decided on bail some years back,
the Prosecutor-General had not yet indicted the accused on this
matter. The Prosecutor and the investigation officer made the
following allegation to the Magistrate during the applicant’s
first application, that the applicant is linked to all the rest of
the accused persons through invitation letters they received from
accused no. 4 to visit Namibia. However, according to Mr. Namandje,
no such evidence could be found in any of the witness’s
statements disclosed to him by the State. He said a number of
witnesses have since testified and the applicant is not connected to
the indictment he is facing.








[6] In essence the
suggestion in the above paragraph are that there is no case against
the applicant before Court. Mr. Namandje further said there was not
even a weaker case against him, nothing at all. If there is something
the applicant was facing, it is only a suspicion which can never be a
basis for a conviction in our law. According to him the applicant has
not been well there in custody. The above factors coupled with the
period he has been in custody since 2007, it will be in the interests
of justice that his client now be released on bail.








[7] In support of
his own release on bail the applicant testified that he went up to
Grade 12 at St Mary’s College in Colombo, Sri Lanka in 1997. He
also studied for a Diploma in computer, whereafter he started working
with computers. He first came to Namibia on the 24th of
May 2007 after he was invited by a friend, and went back home on the
4th of July 2007. During his stay here he was at Safari
Court, Windhoek and he became a boyfriend to Rachel Elizabeth
Slinger. From there he started communicating with his girlfriend. 0n
the 14th of August 2007 he came back for another visit and
was housed at Safari Court where his girlfriend visited him and he
also visited her residence.








[8] He said he was
arrested on the 26th of September 2007 now in custody for
a period of 3 years and nine months. After his arrest by a certain
Mr. Zambwe, no reasons were told to him. His girlfriend’s
parents got him a lawyer from whom he learnt that he was facing
charges of fraud, possession of foreign currency, forgery and theft.
He was not told about these charges during the application for bail
in the Magistrate Court. They only said they suspected him because he
was a Sri Lankan, and that he was also part of the group arrested
earlier on before him referring to his co-accused. His friend Roy,
introduced him to accused no. 4 through internet and told him to send
his particulars to him through e-mail. This was done and they greeted
each other by e-mail. According to the applicant that is all that he
had to do with accused no. 4. From there he did not physically come
into contact with him and so is the rest of his co-accused until
later in prison when they were arrested.








[9] The applicant
denies he was part of his co-accused and said he does not even know
anyone of them. He only came to know them as his co-accused in prison
after his arrest. This is not correct because a State witness Bruce
Bronze Scheepers checked the applicant and accused no. 1 in at Safari
Court Hotel during May 2007. On their request he showed them Windhoek
and they started outing together for fun and drinks at clubs such as
Funky Lab where at some stage they spent N$6,000.00. On another
occasion the applicant and accused no. 1 paid for two nights spent
with this witness at Walvis Bay where they had gone clubbing and
enjoying themselves. They became friends with this witness and from
there they used to go and eat at restaurants where he sometimes saw
the applicant with accused no. 4 during his two visits to Namibia.








[10] At some stage
during the applicant’s first visit he went clubbing with this
witness. They were only two in the car and latter when the witness
was dropped at his home the applicant gave him a plastic bag for
safekeeping. Inside this bag was a pouch containing a white swiping
device, a charger and a parcel wrapped in grey and red cello-tape.
This wrapped parcel frightened witness Johannes Husselman and Zambwe
as they thought it was an explosive. When it was later opened at the
Explosive Unit it was found full of brand new shop like type of gift
cards with magnetic strips. Another State witness Brenda Johanna
Katupose who worked at the Central Café Restaurant as a
waitress in 2007 where breakfast, lunch and internet connections were
served became a friend to accused no. 2 who told her ‘Big guy’
was the applicant’s other name. According to her accused no. 2
sometimes came at her workplace with accused no. 4 and the applicant.








[11] From these
testimonies there is a very clear indication that the applicant
indeed knew his co-accused, and that he was associating with them
during his visits to Namibia. For purposes of a bail application such
as this, this is all that I need to highlight in relation to Mr.
Namandje’s contention that the applicant has not been connected
to any of the charges he is facing.








[12] The applicant
testified further that he worked in England from 2004 to 2007 and
came back to Sri Lanka where he got into problems with his
ex-girlfriend. He became stressed and after contacting a friend Roy
here in Namibia through face book he was told it is a nice place. He
was told about the good night life and as a person interested in
drinking and partying he asked his friend to invite him. He did not
know how to get a Visa, his friend Roy organized through accused no.
4 to give him an invitation letter. He was told to send his
particulars by e-mail to accused no. 4, Travoltha, unknown to him at
that stage. Accused no. 4 e-mailed an invitation letter to him which
he took to his embassy and collected his Visa. He said it was only
him that was invited by accused no. 4 and he is not aware of any
similar invitation letters sent to the rest of his co-accused. The
appellant’s invitation letter reads:








To
whom it may concern



I
Mr. Travoltha Mekaundapi Tjiuju a Namibian citizen ID No. 8104111-162
living at Erf 8374 Freedom Square, Hangane Katjipuka Kavezeri Street
present this invitation letter to you as an invitation to my friend
Antony Sures Kumar Stanis a Sri Lankan passport holder (Passport No.
1170909). I get to know him over the internet and find him very
honest and kind person. I have arranged transport and accommodation
for his visit to our beautiful country. Should you feel insecure
about anything do not hesitate to contact me at 0812024014 any time.



Yours
truly



Travoltha
Tjiuju”













[13] The
applicant’s visits to this country were as follows:



First visit: 24
May 2007 to 4 July 2007



Second visit: 14
August 2007 to the date of his arrest on the 26th of
September 2007. In my view and in particular from the wording of the
above invitation letter, it is highly unlikely that the applicant
would have failed to find out during his first visit or thereafter,
and as one would normally expect it, to meet accused no. 4 and to say
thank you to him. I am therefore convinced that the appellant was not
telling the truth when he testified that he only met accused no. 4 in
prison after his arrest.








[14] It was the
above invitation letter that made it possible for the applicant to
come to Namibia, ‘a nice place’ for the first time to
enjoy what he described as ‘good night life’ in regard to
‘drinking’ and ‘partying’. I take it and
indeed commonsense tells me that one of the first things the
applicant did when he arrived in Namibia for his first visit was to
meet and get to know accused no. 4 for what he has done for him as
reflected in the above letter.








[15] The applicant
denied he ever gave gift cards or scanning devices to anyone. He
denied he withdrew money from other people’s accounts, and
neither were any foreign currency found on him. He said he had his
own credit cards from England, which he used to pay for his
accommodation and transport here in Windhoek. In 2007 the State
witness Xavier Cupido worked at Bank Windhoek Foreign Exchange
department, Hosea Kutako International Airport. He first saw the
applicant at the airport’s arrival terminal when accused no. 1
and 2 came to pick him up. Later accused no. 1 and 2 came at his
workplace to exchange Namibian Dollars into foreign currencies. He
again saw these accused persons and the applicant at Funky Lab and
twice at La Dee Das Club.








[16] The applicant
further stated that he is not aware of a similar case or charge
leveled against him in England apart from a drunken driving case. He
stated that no State witness has connected him to any of the charges
he is facing before this Court, and that includes the remaining
witnesses. He said he did not assist any of his co-accused to
withdraw money from other people’s accounts.








[17] The applicant
said he has developed a high cholesterol and a continuous headache
with blocked nostrils as a result of his stay in custody and the
unhealthy food provided to him there. He is taking treatments from
the doctor who referred him to a specialist but he has no money to
pay for the service. The doctor advised him to eat low fat foods or
to do some exercises to reduce cholesterol otherwise his life would
be in danger of a heart stroke, but the latter could not come to
Court because he was busy. In my view Ms. Lategan correctly
intervened at this point to say the last testimony of the applicant
is of minimum value because the doctor would not be called to testify
and be tested thereon.








[18] The applicant
said he will reside with his girlfriend if he is granted bail and can
afford an amount of N$10,000.00. He pledged to comply with any
conditions the Court may impose. He said his passport is with the
investigating officer and there was no way he could run away. He has
no problem for his name being circulated to the police and
immigration officials at all borders and airports. A communiqué
regarding his release on bail could also be sent to the SA Police and
the Sri Lankan Embassy in that country. If he is denied bail and is
acquitted next year he would have spent more than four years in
custody for no good reason.








[19] In my view at
the end of every criminal trial a suspect may be convicted or
acquitted and this comes about irrespective of whether he is in
custody, on bail or on warning. I take it that such a result suggests
that the law has eventually taken its own course. It is therefore not
correct for an acquitted accused who was in custody during the trial
to say that the duration of his incarceration was “for no good
reason”, because that is what a criminal trial is all about.








[20] In
cross-examination he said that it was not possible for a person to
enter or leave Namibia without a passport and he is not aware of
illegal immigrants boarding trucks or using other illegal means to
leave the country. According to him a person must have a valid
passport and a Visa to leave or enter the country. When asked how his
bailed co-accused no. 1 absconded while his passport is with the
police he said he does not know where he is, or whether he is dead or
alive. In my view accused no. 1’s continued stay away from
Court after being granted bail in the Lower Court is affecting the
trial, because his side of the story will be unknown forever and that
is not in the interests of justice. The applicant is adamant that
only a passport and a Visa enables a person to enter or leave
Namibia. This is not correct. In my view it is possible for a person
to enter or leave the country illegally without a passport due the
vast and porous nature of our border areas which in most cases makes
detection difficult.








[21] It emerged
during cross-examination that at some point during the applicant’s
visit to Namibia he made a statement under oath to the police that
the car he rented was stolen while in fact he damaged it in an
accident and hid it under the bridge. When he was asked to explain
his conduct he said he was drunk and was afraid of being locked up, a
sign of untruthfulness.








[22] The applicant
called his Namibian girlfriend Rachel Slinger to testify in support
of his release on bail. She resides in Windhoek North, 15 Sturrock
Street. Although she is currently doing a six month course in South
Africa, she said the applicant can stay at her parents house, and in
her absence they can report to the police if he disappears. She has
no problem for him staying there until the finalization of the trial.
During cross-examination it surfaced that she came to Court with
another boyfriend, a situation she said was due to the fact that the
applicant was in custody and no longer with her. According to her,
their relationship is back on track some two months before the bail
hearing.








[23] Ms. Lategan
called Warrant Officer Brian Sabo in support of her objection to the
applicants release on bail. This police officer recently took over
this matter from W/O James Mungabwa who has left the force, and by
then all investigations had already been finalized. He did not get
into the matter in detail to know what happened. He said the
applicant was facing a lot of charges and he fears that if he is
released on bail he will abscond. This witness testified that accused
no. 4, was the host of accused no. 1 who has absconded. According to
this witness they were told at Court on the 18th of March
2011 in the morning that accused no. 1 had absconded. Accused no. 4
said this only when he was asked about it. That was when he said he
did not see accused no. 1 for the past three days. According to this
police officer that was the end of the matter and to date accused no.
1 is nowhere to be found.








[24] During
cross-examination and for the reasons already eluded to, the police
officer could not say whether there is a connection between the
applicant and any of the charges he is facing. He was nonetheless
adamant that in his view if the applicant was released on bail he
will flee and will not stand his trial.








[25] Mr. Namandje
took strong exception to some of the evidence placed before the
Magistrate during the applicant’s first bail application and
this related to the effect that:




  • The applicant was
    linked to the rest of his co-accused through invitation letters they
    all received from accused no. 4.




According to this
Counsel many State witnesses have already testified but none of them
came up with the above allegations. He further argued that after
going through the disclosed statements of all State witnesses
including those who have not yet testified, no mention is made
regarding the above allegation.








[26] I must
mention here that most formal bail applications are brought in
Magistrate’s Courts before the completion of the
investigations. It is my view that some of these investigations take
long to finalize due to a variety of reasons among others the
complexity and the difficulties experienced in tracing some of the
witnesses. I must nonetheless emphasize that investigation officers
and Public Prosecutors must always refrain from making allegations
which they are not sure of or have not properly verified during such
proceedings. This conduct has the potential to mislead the Court
resulting in incorrect decisions. This conduct must therefore be
avoided at all costs. I don’t find it appropriate to discuss
this aspect any further, because I am dealing with a normal formal
bail application.








[27] In his
submissions before judgment Mr. Namandje referred to article 5 in our
Constitution which reads:



Protection
of fundamental rights and freedoms.



The
fundamental rights and freedoms enshrined in this chapter shall be
respected and upheld by the Executive, Legislature and Judiciary and
all organs of the Government and its agencies and where applicable to
them, by all natural and legal persons in Namibia, and shall be
enforceable by the Courts in the manner herein after prescribed.”








I will now deal
with authorities cited by Mr. Namandje in support of the release of
his client on bail. In Mohamed and Ander v President of the
Republic of South Africa and Others
2001(3) SA 893 (CC) it was
contended that Mahomed’s constitutional rights to life,
dignity, and not to be subjected to cruel, inhuman or degrading
punishment were allegedly violated when he was arrested, detained,
interrogated by South African immigration officers and handed over to
the United States Federal Bureau of Investigation officers for
interrogation and later removal to New York to stand trial. The
Constitutional Court set aside The Cape of Good Hope High Court order
and declared that the exercise was an unlawful violation of the
appellants aforementioned rights in as much as there was no prior
undertaking from the United States government that if a death
sentence was imposed it would not be executed. I agree with the
reasoning of the Constitutional Court in this regard.








[28] In St v
Branco
2002(1) SACR 531(W) the main reasons that heavily
influenced the Magistrate to refuse bail to the appellant were, the
seriousness of the charge, attracting a 25 years goal term, the
strength of the State’s case and the fact that he was a foreign
citizen with no real ties to the country. He found the appellant and
his wife to be flight risks. On appeal the refusal was set aside on
the basis that the Magistrate misdirected himself by not having
regard to the fact that the appellant permanently resided in the
country, was employed, stayed there with his wife and three children
for five years. Also found to have been disregarded was the
appellant’s degree of co-operation with the police resulting in
the arrest of the kingpin of the operation, accused no. 5.








[29] All that the
investigating officer told the Court a quo was that the
appellant and his wife were flight risks if released. Apart from
family connections in Mozambique, Portugal and Canada there was no
evidence that he had any assets or even business interests outside
the country. The appellant indeed had family and business ties in the
country and bail was accordingly granted.








[30] In my view
the facts in this matter are materially different to those of the
applicant before Court in that apart from a short once broken and
recently revived boy and girlfriend relationship with Rachel Slinger,
the applicant is a foreigner with no other ties in this country
whatsoever.








[31] In the
unreported judgment by this Court, St v Likius Aikela,
delivered on the 7th of April 1992 O’Linn J, as he
then was stated at page 7:








I
wish to stress again that the administration of justice in general
and the trial of accused persons and the need to bring them before
Court and to ensure that they will stand their trial, is not a little
game but a matter of fundamental national interest and importance.”








[32] In my view it
will not be in the interest of the administration of justice and that
of the public to release the applicant on bail, a Sri Lankan national
who will not lose anything if he absconds.








[33] In the result
the application to release him on bail is refused.

































_________________



SIBOLEKA, J








ON BEHALF OF
THE APPLICANT: MR. S. NAMANDJE



INSTRUCTED BY:
SISA NAMANDJE & CO. INC.








ON BEHALF OF
THE RESPONDENT: ADV. LATEGAN



ASSISTED BY
ADV. MOYO



INSTRUCTED BY:
THE OFFICE OF THE



PROSECUTOR-GENERAL