Windhoek-An attempt by the prosecutor general (PG) to have the bail of three suspected robbers, who targeted tourists, cancelled in the Windhoek High Court was dealt a crushing blow when Acting High Court Judge Petrus Unengu struck the application from the roll.
The reason was because the complete appeal record, the notice of set down and proof that the documents were served on the respondents were not filed with the court.
The PG launched the application after the three men – Flavianus Endjala, Martin Ericky and Nauta Stephanus – were granted bail by magistrate Johannes Shuuveni during their first appearance on charges of robbery and theft out of a motor vehicle.
Endjala was caught red-handed on August 10 this year when he and his two co-accused tried to rob a family of German tourists on the B1 highway on the way to Okahandja. While Endjala was apprehended by a bus driver who witnessed the attempted robbery, his co-accused managed to escape, but was arrested later in connection with another case of theft out of a motor vehicle.
Ironically, Endjala was supposed to appear in another matter at the Katutura court on the day of the robbery. The magistrate in that matter cancelled his N$2,000 bail and issued a warrant for his arrest.
Despite that warrant for his arrest pending, he was granted bail of N$5, 000 by magistrate Shuuveni the very next day.
During that hearing, the public prosecutor, Hertha Itembu, objected to bail, but the magistrate granted bail on his own accord without the accused applying for it and despite the public prosecutor objecting to bail.
During the appearance of Ericky and Stephanus on August 15, to be joined in the case of Endjala, the magistrate also granted them bail in the amount of N$5,000 each and said that although the offence of robbery is, in his view, of such a serious nature that a formal bail hearing is required, bail is not punishment, and if the accused are to be convicted, the sentences imposed will reflect the seriousness of the offences.
He further said that it would be unfair for the court to refuse Ericky and Stephanus bail since he had already granted Endjala bail.
The PG argued the magistrate misdirected himself by not considering the seriousness of the offences, which by law requires a formal bail application where the state and the accused will have the opportunity to state their respective cases.
State Advocate Cliff Lutibezi, who appeared for the PG, argued that magistrate Shuuveni was aware of the state’s opposition to bail, but still proceeded to grant them bail. He said it was a misdirection on the part of Shuuveni when he neglected to forwarn the state that he wasconsidering granting the accused persons bail, while knowing the state’s objections.
“Thus, applicant was not afforded an opportunity to address the court or call any evidence prior to the court granting bail on its own accord,” Lutibezi further stated.
The PG will launch another appeal once it has all the papers in order.