Judgement on Caprivi 13 reserved

A SECOND court order for the release of the 13 Caprivi high treason accused – who were re-arrested and recharged after Judge Elton Hoff discharged them from the treason case and ordered their release – will interfere with the pending Supreme Court appeal against their discharge, the High Court heard on Friday.

Jeremy Gauntlett, SC, representing Government, the Minister of Home Affairs and the Prosecutor General raised the argument before Judge Annel Silungwe and Acting Judges John Manyarara and Petrus Damaseb when he asked them on Friday to dismiss the 13’s case. The 13 want the High Court to order their immediate release from custody.The court reserved judgement, with no indication of when it would give its ruling.Theo Frank, SC, argued that the re-arrest of the 13 in the wake of Judge Hoff’s finding had to be declared unlawful and that they should have been allowed to return to Botswana and Zambia.Then legal procedures should have been followed in an effort to have them correctly delivered to Namibia to face the charges they face.Gauntlett admitted that the re-arrest of the 13 was nothing other than “a holding operation” aimed at keeping them in custody while the prosecution pursued a Supreme Court appeal against Judge Hoff’s ruling.”A holding operation based on what? What justification in law? No justification,” Frank responded.He argued that the State was left to devise this strategy because, despite having “a phalanx of lawyers”, they had apparently never anticipated that the court’s ruling might go against them.The prosecution could have reacted to the ruling by asking the Judge to order that the 13 be kept in custody pending the outcome of an appeal or a petition to the Supreme Court.He said the court would have had the inherent power to make such an order.With this option not having been followed, they could not simply be re-arrested and re-arraigned on the same charges, Frank argued.According to Gauntlett, Judge Hoff “jumped the gun” with his order for the release of the 13.He devoted most of his argument to what he claimed would be the inappropriateness of the High Court ruling on the legality of the re-arrest of the 13, and on their application to be released immediately, while an appeal against Judge Hoff’s ruling on the jurisdiction issue was pending.”This case has wandered into Alice in Wonderland.The correct thing would have been to await the outcome of the Supreme Court hearing,” Gauntlett said.”The cart has been put before the horse.The Supreme Court has to speak first,” he argued.He said the fact that an appeal was pending had the effect that Judge Hoff’s order of February 23 was suspended, Gauntlett argued.He added that to now order the release of the 13 could have the effect that, even if the Supreme Court then later ruled in favour of the State, setting aside Judge Hoff’s judgement, it might be a hollow victory: by then the 13 could have left the country.The 13 want the High Court to order their immediate release from custody.The court reserved judgement, with no indication of when it would give its ruling.Theo Frank, SC, argued that the re-arrest of the 13 in the wake of Judge Hoff’s finding had to be declared unlawful and that they should have been allowed to return to Botswana and Zambia.Then legal procedures should have been followed in an effort to have them correctly delivered to Namibia to face the charges they face.Gauntlett admitted that the re-arrest of the 13 was nothing other than “a holding operation” aimed at keeping them in custody while the prosecution pursued a Supreme Court appeal against Judge Hoff’s ruling.”A holding operation based on what? What justification in law? No justification,” Frank responded.He argued that the State was left to devise this strategy because, despite having “a phalanx of lawyers”, they had apparently never anticipated that the court’s ruling might go against them.The prosecution could have reacted to the ruling by asking the Judge to order that the 13 be kept in custody pending the outcome of an appeal or a petition to the Supreme Court.He said the court would have had the inherent power to make such an order.With this option not having been followed, they could not simply be re-arrested and re-arraigned on the same charges, Frank argued.According to Gauntlett, Judge Hoff “jumped the gun” with his order for the release of the 13.He devoted most of his argument to what he claimed would be the inappropriateness of the High Court ruling on the legality of the re-arrest of the 13, and on their application to be released immediately, while an appeal against Judge Hoff’s ruling on the jurisdiction issue was pending.”This case has wandered into Alice in Wonderland.The correct thing would have been to await the outcome of the Supreme Court hearing,” Gauntlett said.”The cart has been put before the horse.The Supreme Court has to speak first,” he argued.He said the fact that an appeal was pending had the effect that Judge Hoff’s order of February 23 was suspended, Gauntlett argued.He added that to now order the release of the 13 could have the effect that, even if the Supreme Court then later ruled in favour of the State, setting aside Judge Hoff’s judgement, it might be a hollow victory: by then the 13 could have left the country.