Americans Fail With Bid for Freedom

Werner Menges

16 May 2011

A second attempt to win their freedom through an urgent application in the High Court in Windhoek ended in failure for American murder suspects Marcus Kevin Thomas and Kevan Donnell Townsend on Saturday.

Five weeks after a first urgent application through which the two men were trying to win their release from custody was abandoned in the High Court another urgent bid for freedom by the two men was back in the same court this weekend.

This time around, the case turned into a costly exercise for the men’s lawyer, Vetu Uanivi, after Acting Judge Kobus Miller not only dismissed the Americans’ application to be released from custody, but also ordered Uanivi himself to pay the legal costs of the respondents in the case.

Thomas and Townsend (both aged 25) are accused of murdering the 25-year-old Andre Peter Heckmair in Windhoek on January 7. Heckmair was killed around 13h30 when he was shot in the head in a car in Klein Windhoek’s Gusinde Street.

By the evening of the same day, which was a Friday, Police officers arrested Thomas and Townsend at a guesthouse in Windhoek.

They were initially only charged with possession of a small quantity of dagga, and appeared in court on that charge on the next working day, which was January 10. On January 12 the two men were sentenced in the Windhoek Magistrate’s Court after they had pleaded guilty to the dagga charge.

Then, however, they were again arrested – this time on a murder charge in connection with Heckmair’s death. On January 14, they made their first court appearance on that charge, and Magistrate Ruth Herunga ordered that they should remain in custody while the investigation of their case continued.

In the urgent application the two men were claiming they were in fact arrested for murder on January 7 already, but only appeared in court on that charge seven days later – which is a breach of the constitutional requirement that they should have appeared in court within 48 hours after their arrest.

The Police however are insisting that the initial arrest was only for possession of dagga, and that the arrest in connection with the murder of Heckmair took place on January 12. Thomas and Townsend appeared in court on the murder charge within 48 hours after that arrest, the Police are stating.

Except for asking for an order for their immediate release, the two men also wanted the High Court to declare their detention since January 14 as unlawful.

Senior counsel Herman Oosthuizen, who represented the Minister of Safety and Security, the commanding officer in charge of Windhoek Central Prison, the Prosecutor General, the Attorney General and Magistrate Herunga, defended the legality of the men’s detention on Saturday. He told Acting Judge Miller: “The detention here, until today, remains lawful, constitutional and legal.”

Arguing that the application was not urgent, Oosthuizen charged that, by returning to court on a Saturday with a supposedly urgent matter five weeks after they had first abandoned it, Uanivi and his clients were making a mockery of Namibia’s laws, the court and the Constitution.

The case, which was filed with the court late on Friday afternoon, was brought to court in a “baseless and opportunistic manner”, Oosthuizen charged.

He asked why previous scheduled dates for the hearing of a bail application by Thomas and Townsend had not been used if their liberty was such an urgent matter.

Oosthuizen requested the costs order against Uanivi personally, “due to flagrant disregard of this court’s rules”.

Uanivi told the court that after the previous urgent application was dropped he had been busy with other work, so that he could not bring the case back to court earlier.

When the liberty of a person is at stake a case is inherently urgent, he also argued, though.

Acting Judge Miller gave a brief ruling, dismissing the case and ordering Uanivi to pay the respondents’ costs, after hearing close to two hours of arguments. He will give reasons for the ruling in due course, he said.

Thomas and Townsend are scheduled to appear in the Magistrate’s Court again on July 8.

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