Nghipunya v S (HC-MD-CRI-APP-CAL-2020/00077) [2020] NAHCMD 491 (28 October 2020);

 

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK                

 

BAIL APPEAL JUDGMENT

 

Case no:  HC-MD-CRI-APP-CAL-2020/00077

In the matter between:

 

MIKE NGHIPUNYA                                                                            APPELLANT

 

and

 

THE STATE                                                                                       RESPONDENT

 

Neutral citation:  Nghipunya v S (HC-MD-CRI-APP-CAL-2020/00077) [2020] NAHCMD 491 (28 October 2020)

Coram:          LIEBENBERG J et CLAASEN J

Heard:            15 October 2020

Delivered:     28 October 2020

 

---

 

1.   The appeal is dismissed.

 

2.   The matter is finalised and removed from the roll.

 

---

 

LIEBENBERG J       (concurring CLAASEN J)

 

Introduction 

[1]        The appellant, accused no.1 in the so-called ‘Fishcor’ matter unsuccessfully applied for bail in the Windhoek district court on 30 June 2020. The appellant stands charged together with James Hatuikulipi (accused no.2); Sakues E.T Shangala (accused no.3); Bernard M. Esau (accused no.4); Tamson T. Hauikilipi (accused no.5) and Pius Mwatelulo (accused no.6).

 

[2]        Prior to the hearing of this matter, the court posed questions to counsel on the use of affidavits in bail applications and questions related thereto. Both counsel timeously submitted same and at this juncture, we extend appreciation for the laborious effort of submitting additional heads of argument on the questions posed by the court.   The questions are as follows:

 

 

1.   ‘Despite being couched as an application, bail proceedings are inquisitorial in nature.

 

1.1  What effect, if any, would an application for bail brought on affidavit have on the powers of the presiding officer during the inquiry to ascertain whether it would be in the interest of justice to grant bail or not?

 

1.2  If answered in the affirmative, how is the presiding officer to enquire into any relevant issue not dealt with by the applicant?  

 

1.3  Is the court simply to accept the mere say-so of the applicant when stated under oath and not tested under cross-examination?

 

2.   By adopting affidavits in opposed bail applications, the procedure applicable to civil applications, there appears to be a real likelihood that a factual dispute would arise and the matter to be referred to trial for evidence to be led. Would such procedure not defeat the hearing of bail applications on an urgent basis?

 

3.   Where the applicant brings the bail application on affidavit and the respondent (The State) in opposition leads oral evidence, to what extent would the court be entitled to attach less weight to the untested evidence of the applicant as opposed to the tested evidence of the respondent’s witnesses?’

 

 

[3]        Both parties agree that the role of the court is inquisitorial in nature in bail applications and the function of the court as administrator of justice. In this regard, we agree with how the court in Charlotte Helena Botha vs State[1] at p.7 described the court’s function:

 

‘The court in a bail application should play a more “activist” and/or inquisitorial role where the circumstances justify it.’ (Emphasis added)

 

[4]        Therefore, whether the applicant proceeds via affidavit, from the bar or through viva voce evidence, the court essentially retains this function. Moreover, where an applicant for bail decides to proceed via affidavit and for whichever reason decides to not go into the merits of the charges he faces and/or places insufficient information therein, the court may invoke the provisions of sections 167,186 and 274[2] of the CPA, should the need arise.[3] It follows that once a court is of the view that an issue must be referred to oral evidence and such accused refuses to give viva voce evidence on that point, as he is constitutionally entitled to do, such applicant should be fully aware that the shortfall in the evidence will not necessarily assist in discharging the onus resting upon him.

 

[5]        It has been a standing practice that bail applications are brought in three different ways, that is: from the bar, through the leading of viva voce evidence and through the filing of affidavits. The first and second manner is well utilised in our courts on a daily basis. The former is normally utilised when there is no dispute on the facts and the applicant and the prosecutor simply make submissions on predetermined issues i.e. the amount of bail or condition to be set, which is then decided by the court after hearing such submissions from the bar. The third manner, however, has in recent times been the subject of much discussion, mainly because of the procedure to be adopted, the different tests to be applied, and the different evidential weights involved.[4]

 

[6]        In a recent judgment by our brother Sibeya AJ in Shekundja v S [5] the court set out certain guidelines in respect of bail applications brought on affidavit. Accepting that the use of affidavits in bail applications is permissible in Namibian law and that the test to be applied where disputes of fact arise, the court opined that the trite principles applicable in the matter of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,[6] to resolving disputes of fact in motion proceedings, may be utilized.  The test is stated at para 36 in the Shekundja matter as follows:

 

‘Where factual disputes arise from the affidavits in application proceedings, a final order sought by the applicant can only be granted, if the facts averred by the applicant, and facts admitted by the respondent, justify the order sought. If, however, the respondent’s version consists of bare denials, fictitious disputes of fact or is far-fetched, then the court may reject such version on the papers. The factual averments in dispute must strictly speaking be real, genuine or bona fide, emanating from established facts. The court still retains the discretion to refer real factual disputes which cannot be resolved on the papers to oral evidence, and the referral is only on such limited disputed facts.’

(Emphasis added)

[7]        Though helpful in many respects, the above principles are limited to a scenario where both parties agree to proceed via affidavit. It is therefore necessary to further state the approach to take in a scenario where the parties, like in this matter, take different approaches, i.e. where the applicant proceeds by way of affidavit and the respondent proceeds with viva voce evidence or vice versa.

 

[8]        The starting point is that bail applications are sui generis and are not per se subject to strict principles applicable to either civil or criminal procedure. As an applicant who brings a bail application is not compelled to give viva voce evidence if he does not wish to do so, which is his constitutional right, he is open to decide the procedure in bringing his application. However, since strict civil and criminal procedure does not apply to bail proceedings, the state is not bound by the course taken by the applicant. In practice, the applicant will give notice to the state as to the procedure opted for and the state is to notify the applicant whether it will proceed with the calling of witnesses or on affidavit. The stage where the applicant and the state have made their intentions clear is crucial to the applicant because the perceived advantages of proceeding on affidavit can only truly be reaped where both parties proceed with the filing of affidavits. This may not be as advantageous if the applicant and the state adopt different routes.

 

[9]        An applicant for bail therefore cannot be condemned for electing to present his case by way of affidavit and not orally. However, it is trite that averments contained in an affidavit has less probative value when compared to oral evidence which can be subjected to cross-examination.^[7] Despite argument by counsel for the appellant to the contrary, we agree with the view held by Botha J in S v Pienaar,[8] endorsed in the Supreme Court of South Africa in Mathebula and the State[9] where he stated:

 

‘In our view therefore there is nothing in the Criminal Procedure Act that renders the use of affidavits in bail applications impermissible. Obviously an affidavit will have less probative value than oral evidence which is subject to the test of cross-examination. At the same time an affidavit will carry more weight than a mere statement from the Bar.’

(Emphasis added)

 

Therefore, there may be times where the utilising of an affidavit will not meet the complexity and gravity of the oral evidence presented by the state. In other words, the circumstances of the matter may call for oral evidence rather than on affidavit and vice versa. This will vary from case to case.

 

[10]      When the application in this matter commenced in the Windhoek magistrate court, the record reflects that the parties locked horns about the way in which the bail proceedings would proceed. Counsel for the appellant submitted that they served the affidavit in sufficient time preceding the date of commencement of the bail hearing and stated that the respondent should have filed an answering affidavit, but did not do so. Counsel further indicated that the procedure adopted by them is a motion procedure and, being dominus litis, they are entitled to do so. Furthermore, that when a party brings the application on notice of motion, there is only one way to oppose it and that is by filing an answering affidavit. Counsel for the appellant further took serious objection to the respondent opting to oppose by way of oral evidence, as the respondent (in his view) could only lead evidence of witnesses with leave of the court and that it is not available as a matter of demand.[10] With deference to counsel for the appellant, this approach submitted to the court a quo is in our considered view clearly wrong. Fortunately counsel subsequently changed his view in the supplementary heads filed on behalf of the appellant.

 

[11]      In contradistinction, the respondent submitted that they, from the outset, indicated in opposition of the application that the state would proceed with the calling of witnesses. Counsel for the respondent further submitted that the appellant was well aware of the position taken by the respondent and, that the strict stance on the procedure submitted by appellant’s counsel, was not supported by any authority.  

 

[12]      Moreover, the appellant in their supplementary heads submitted that the state did not file any answering affidavit or seek to cross-examine the appellant and therefore, there was no dispute of fact on the appellant’s affidavit. Again, with deference to counsel for the appellant, we cannot see how the respondent can seek to cross-examine an applicant who has not placed himself in the witness box. It naturally follows that where an applicant chooses to proceed via affidavit and not enter the witness box, such applicant necessarily also chooses not to be cross-examined, unless indicated otherwise. This does not mean that an applicant cannot submit himself to cross-examination, even where the application is made on affidavit, should he wish to do so. But, this must be clearly indicated.

 

[13]      As a result of the aforegoing, the following principles will be applicable in bail applications brought in Namibia:

 

a.   An applicant may apply for bail by the filing of affidavits, founding and supporting;

 

b.   Once notice is received by the state, it may elect which procedure it will follow;

 

c.   Where both the applicant and the state agree to file and oppose the application through the filing of affidavits, the court may, where there is a dispute of fact, resolve same through utilising the Plascon Evans rule as stated in the Shekundja matter (supra);

 

d.   An applicant who proceeds via affidavit may submit himself to cross-examination if he so chooses but must clearly indicate same, and will then be required to read the affidavit into evidence while on the witness stand;

 

e.   Regardless of which procedure is followed, the court retains its inquisitorial role and may utilise the provisions of sections 167,186 and 274 of the CPA. This essentially answers question 1.1 above;

 

f.    In respect of question 1.2 the court may require the applicant to lead oral evidence on a point in dispute. The applicant however retains the right not to do so and remain silent;

 

g.   Where both parties choose the same method, be it on affidavit, from the bar or through oral evidence, the probative weight of the evidence is the same for the applicant and the state;

 

h.   Where either party proceeds by affidavit or from the bar and the other by calling oral evidence, the oral evidence tested under cross-examination will necessarily carry more probative weight than the affidavit or any submission made from the bar. This answers question 3 above. However a court is nonetheless duty-bound to analyse evidence judicially and in line with established rules of evidence. There will be times where oral evidence, despite carrying more probative weight, will not be sufficient to gainsay evidence on affidavit and vice versa;

 

i.    Therefore, in respect of question 1.3, the court may accept averments made in an affidavit as evidence, subject however to the court’s inquisitorial powers, probative values attached thereto and relevant tests to be applied;

 

j.    In respect of question 2, the procedure adopted by either party should not detract from the inherent urgency in bail applications. A procedure which will expedite the speedy disposal of the bail application should be strived to be reached by both the state and the applicant without derogating from the rights and duties reserved by each party.  Referral by the court to hear oral evidence on disputed facts which were or ought to have been foreseen from the onset, would to a great extent negate the procedure opted for by the applicant who envisaged the adjudication of the matter on urgent basis. The discretion, however lies with the court if and when the need arises to hear oral evidence.

 

Objections to bail

[14]      Moving to the appeal itself, the record reflects the following objections to bail by the respondent:

a.   It is not in the interest of the administration of justice to release the accused on bail.

b.   It is not in the interest of the public to release the accused on bail.

c.   The applicant is likely to abscond.

d.   Interference with police investigations.

 

The law relating to Bail Appeals

[15]      According to the CPA, an appeal against the refusal of bail by a lower court provides in section 65(4) as follows:

‘The court or judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such court or judge is satisfied that the decision was wrong in which event the court or judge shall give the decision which in its or his opinion the lower court should have given.’

(Emphasis added)

 

[16]      It is trite law that the above test has been properly interpreted in S v Timotheus^[11] where the court referred with approval to S v Barber ^[12] at 220 E-H, where Hefer J explained the implication and purport of subsection 4 as follows:

'It is well known that the powers of this Court are largely limited where that matter comes before it on appeal and not as a substantive application for bail. This Court has to be persuaded that the magistrate exercised the discretion which he has wrongly. Accordingly, although this Court may have a different view, it should not substitute its own view for that of the magistrate because that would be an unfair interference with the magistrate's exercise of his discretion. I think it should be stressed that, no matter what this Court's own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly…’^[13]

(Emphasis added)

 

[17]      To this end, the court of appeal is not called upon to sift through every detail of evidence afresh to determine whether it agrees or disagrees with the factual findings of the magistrate. The inquiry is limited to whether the court a quo’s discretion was exercised wrongly. Therefore, it matters not what this court’s opinion on the evidence is or whether it would have come to a different conclusion. A court of appeal’s powers are only activated when the court a quo made a clear error ex facie the record. Moreover, where a misdirection is proven it must further be shown to be material, as not every misdirection will enable the court of appeal to disregard the findings of the court a quo. The sentiments expressed in R v Dhliwayo and Another,[14] in this regard is apposite:

 

‘An appellate court should not seek anxiously to discover reasons adverse to the conclusions of the trial judge. No judgment can ever be perfect and all-embracing, and it does not necessarily follow that, because something has not been mentioned, therefore it has not been considered.’

(Emphasis added)

 

[18]      With regards to the perceived right to bail, section 35 (1) (f) of the South African Constitution in clear and unambiguous terms embodies the right to be released from detention. However, the Namibian Constitution does not specifically refer to a right to be released on bail but provides for the right to a fair trial, the protection of liberty and the presumption of innocence.[15] Similarly the amendments to the Criminal Procedure Act in South Africa do not correspond with and do not apply to section 60 as it appears under the CPA in Namibia. To this end an applicant for bail does not per se enjoy a right to bail but a right to apply for bail. Moreover, an accused who applies for bail bears the specific onus to prove on a preponderance of probabilities that the interest of justice permit his release.^[16] This means that an applicant must specifically make out his own case and not necessarily rely on the perceived strength or weakness of the state’s case.[17] In so doing, an applicant must place before a court reliable and credible evidence in discharging this onus. Next we turn to consider the grounds of appeal:

 

Grounds of Appeal

 

[19]      The grounds of appeal as they appear ex facie the notice of appeal, appear as follows:

 

‘TAKE NOTICE that the above-mentioned appellant hereby notes an appeal against the refusal of bail by the Her Worship Ingrid Unengu, and whose ruling was delivered on 30 June 2020.

 

TAKE FURTHER NOTICE that the grounds of appeal that the appellant relies on are:

1.         The court a quo misdirected itself in fact or law by finding that the appellant will interfere with investigation because:

1.1       The evidence that was led by the State only showed that it was Mr James Hatuikulipi that attempted to interfere with investigations by preparing a document for the persons in other jurisdictions to the effect that the moneys paid were not paid under the pretext of corruption. No evidence was led to show that the appellant interfered, or will, interfere with investigation.

1.2       The court a quo misdirected itself in fact or law by applying the incorrect approach in answering the question as to whether appellant poses a risk of interference with investigations. The court misdirected itself because;

1.3       The approach that the court a quo adopted was that where there is a ‘remote possibility’ of appellant interfering with investigation is sufficient for refusing bail.

2.         The proper approach that the court a quo had to employ was; whether it is likely that the appellant will, not may, interfere with investigation. (See Tjizu v S (CA 01/2017) [2017] NAHCMD 131 (08 May 2017).

2.1       The court a quo misdirected itself in coming to the conclusion that appellant poses a flight, because;

2.2       The State only led evidence to show that it has a prima facie case against the appellant and which may result in a lengthy sentence. However, the State failed to show that there is a likelihood that the appellant is a flight risk and would abscond. Additionally, the Investigating Officer conceded that appellant has not absconded during December 2019 and February 2020, despite the fact that appellant was abroad and returned to Namibia.

2.3       The evidence of the appellant was not contradicted and the appellant showed that he does not pose a flight risk and therefore would not abscond because;

 

(a)  he is a Namibian national;

(b)  he has four immovable properties valued at N$8 million in Namibia;

(c)  He gets a salary of N$1.5 million per annum

(d)  He has no family or relatives outside of Namibia; and as part of his bail conditions he is willing to surrender all of his travel documents to the investigating officer;

(e)  He takes care of his late sister’s children and his mother who are financial depended on him

 

2.4       The court a quo in light of all the evidence adduced by the State and the appellant could not come to the conclusion that the appellant poses a flight risk and would abscond.

3.         The court a quo misdirected itself when it relied on section 61 of the Criminal Procedure Act (the CPA) 51 of 1977 when it found that it was against the interest of society to release the accused on bail because the State proved that it had a prima facie case against the appellant and that there is public outcry. The court a quo misdirected itself in the following manner;

3.1       The appellant is in custody on one (1) count of corruption, one (1) count of fraud and (1) count of money laundering.

3.2       The offences of corruption and money laundering are not offences listed in Part IV of Schedule 2 of the CPA.

3.3       The court a quo did not indicate in its ruling which offence the State has proved on a prima facie basis.

3.4       The Learned Magistrate erred in finding that it will not be in the interest of the public and the administration of justice if the Appellant is released on bail. There is therefore no proper evidence before the court that it is in the interest of justice that the appellant’s bail should be refused.

4.         The Learned Magistrate erred in not finding that the Applicant proved that it will be in the interest of justice that he is granted bail.

5.         The Learned Magistrate erred in finding that there is a strong case against the Applicant in circumstances where the evidence of the investigating officer was totally completely proved to be unreliable and hence untenable under cross-examination.

6.         The Learned Magistrate erred in finding that due to the serious nature of charges, a long term of imprisonment would be inescapable where there exists legal authorities to the contrary. In doing so the learned Magistrate seemingly applied the test that the appellant herein had an onus to prove his innocence of the charges, which is not the test in law for a bail application.

7.         The Learned Magistrate over-emphasised the interest of justice and completely overlooked the spirit of the presumption of the innocence enshrined in our Bill of Rights in rejecting the bail of the applicant, a presumption that should have operated in favour of the appellant herein especially where he demonstrated that he was and has never been a flight risk and that he was looking forward to defending himself and clearing his name in a trial before a competent court of law.

8.         The Learned Magistrate erred in refusing bail and by failing to give due weight and regard to the personal circumstances of the appellant moreso when those personal circumstances of the Appellant were not disputed.

9.         The Learned Magistrate erred/and or misdirected herself in law and in fact when she found that there exists a likelihood that the Appellant would attempt to evade his trial. There was no proper and/or credible evidence before the Magistrate Court upon which such a conclusion and/or finding could be made.

10.       The Learned Magistrate erred and misdirected herself in fact or in law by applying the incorrect approach in answering the question as to whether Appellant poses a risk of interference with investigation. The proper approach to employ should be whether it is likely that the Appellant will, not may interfere with investigation.

11.       The Learned Magistrate erred and misdirected herself in fact or in law to make the finding that the Appellant will interfere with ongoing investigation where there is no evidence to that effect.

 

DATED AT WINDHOEK ON THIS 10^TH DAY OF JULY 2020.’ (sic)

 

[20]      Some of the grounds of appeal, as they appear ex facie the record, either overlap with one another; are repetitious; unclear or simply amount to conclusions reached by the drafter. This court has in numerous appeal matters expressed its displeasure as to the manner in which legal practitioners go about drafting notices of appeal as if it were a fishing net, cast as wide as possible, trawling through the whole judgment. The Supreme Court in Hindjou v The Government of the Republic of Namibia[18] stated when dealing with such ground(s) of appeal:

‘A reading of the above passage and some of the grounds of appeal draws one’s attention to the time that would be saved were counsel to pay attention to areas of a judgment they were challenging because of what they consider to be a misdirection or any other perceived wrong in the judgment. To ramble through the whole judgment in the hope of finding something wrong or an error which leads to success of the appeal, is not in the interest of justice. It tends to waste the time of the parties and the court.’

(Emphasis added)

 

It remains an anomaly why, despite these judgments, there appears to be no change in the drafting of notices of appeal by some counsel. Although stated in an application to stay an arbitration award, the words of Peter AJ, in Venmop 275 (Pty) Ltd and Another v Cleverlad Projects (Pty) Ltd and Another [19] at para 19, finds equal application in respect of the manner in which some of the grounds in the notice of appeal are drafted:

 

‘The idea that more is better and that it is wiser “to put everything before the judge” belongs to the lazy and the insecure.  It ignores the sentiment expressed in Phambili, Van Zyl, Zuma, Dunkel and McKesson.  Litigants who deluge a court with a welter of irrelevant and unnecessary material, which hides and confuses what is relevant, ought not to be heard to complain about the quality of the judicial determination they receive.’

 

[21]      Similarly in this jurisdiction, there appears to be this notion that more is better. We associate ourselves with the dictates in the Venmop matter where the court states that this practice belongs to the lazy and insecure. This court has also on numerous occasions set out the applicable legal provisions and requirements in respect of the notice of appeal. Regrettably, this has to be done again in this matter. Rule 67(1) of the Magistrate’s Court Rules, dictate that the grounds of appeal filed by the appellant with the clerk of court must be stated clearly and specifically, the requirements and purpose of which has been explained in S v Gey van Pittius,^[20] where Strydom AJP (as he then was) at 36H stated:

 

‘The purpose of grounds of appeal as required by the Rules is to apprise all interested parties as fully as possible of what is in issue and to bind the parties to those issues. (See further in this respect the judgment of my Brother Frank AJ in the matter of S v Wellington (1990 NR 20) and the cases referred to therein.)’

(Emphasis Added)

 

Similarly the court in S v Kakololo[21] at 8F-9A, explains the above principles as follows:

 

‘The noting of an appeal constitutes the very foundation on which the case of the appellant must stand or fall (S v Khoza 1979 (4) SA 757 (N) at 758B). It serves to inform the trial magistrate in clear and specific terms which part of his or her judgment is being appealed against, what the grounds are on which the appeal is being brought and whether they relate to issues of law or fact, or both…

 

The notice also serves to inform the respondent of the case it is required to meet and, regard being had to the record and the magistrate’s reasons, whether it should concede or oppose the appeal. Finally, it crystallizes the disputes and determines the parameters within which the Court of Appeal will have to decide the case (Compare: S v Maliwa and Others 1986 (3) SA 721 (W) at 727; S v Nel 1962 (1) SA 134 (T) at 135A; and R v Lepile 1953 (1) SA 225 (T) at 230H.)

Consequently, it also serves to focus the minds of the Judges of Appeal when reading the (sometimes lengthy) record of appeal, researching the law in point, considering argument and adjudicating the merits of the appeal.’

(Emphasis added)

 

[22]      Applying the above principles to the grounds of appeal enumerated in the appellant’s notice of appeal, this court finds that grounds 2.4, 3.4, 4 and 5 simply amount to conclusions reached by the drafter. Grounds 7, 8, 9, 10 and 11 are repetitious, overlapping and fail to be clear and specific.  The consequences of a notice of appeal failing to comply with the provisions of Rule 67(1) is that there is no notice at all and a nullity without force or effect.[22]  As these grounds clearly do not meet the requirements, they will not be considered. Furthermore grounds 1, 1.1, 1.2, 1.3 and 2 will be taken together, as they essentially entail a single ground of appeal, that is, whether the court erred by finding that the appellant will interfere with investigations. Grounds 2.1, 2.2 and 2.3 similarly amount to a single ground of appeal, namely, that the court erred by finding that the appellant is a flight risk. Grounds 3, 3.1, 3.2, and 3.3 criticise the court for invoking the provisions of section 61 of the CPA. Finally ground 6 criticises the court for applying a test that the appellant bore an onus to prove his innocence which, according to the appellant, is not the test in bail applications. Essentially the court was left with 4 grounds of appeal, that is, grounds 1 – 2; 2.1 – 2.3; 3 – 3.3 and 6.

 

[23]      It is apposite here to mention that counsel for the appellant raised an issue during the hearing of the appeal pertaining to section 61 of the CPA which was not contained in the notice of appeal, nor in the heads of argument submitted by the appellant. The submission, if understood correctly, is that the court should consider whether section 61 of the CPA is not inherently unfair, as an applicant for bail does not know on what criteria a court bases its opinion when deciding whether it is in the interest of the administration of justice and or in the public interest to permit an applicant to bail, or not. When regard is had to grounds 3.1 – 3.4, these take issue with the fact that offences of corruption and money laundering are not offences listed in Part IV of Schedule 2 of the CPA and that the court a quo did not indicate in its ruling which offence the state has proved on a prima facie basis and, for making the finding that the interest of justice did not permit the appellant’s release. It is clear from these grounds that the fairness of the section is not raised and fall outside the scope of this appeal. Therefore, with deference to counsel for the appellant, it is a trite principle of law and practice of this court that an appellant cannot introduce additional grounds of appeal in his/her heads of argument or at the hearing, which has not been encapsulated in the notice of appeal. This court has held in Avital Ben Birovsky and The State [23] at p.4 para 12:

 

‘Any such submission that is not based on one or more of the appellant’s grounds of appeal cannot be entertained because the grounds of appeal have not been amended and have not been submitted to the magistrate for his consideration.’

 

We therefore find that the fairness of section 61 of the CPA is not related to any ground of appeal in the notice and, for that reason, will not be considered by this court.

 

Applicability of section 61 of the CPA

 

[24]      The appellant attacks the ruling of the court a quo on the basis that not all the charges facing the appellant fall within the ambit of section 61 of the CPA and that the court a quo did not indicate which offence was proven on a prima facie basis. To fully assess this ground of appeal, the court will have to look at the evidence led by the respondent and whether section 61 of the CPA is applicable or not to the facts of this case.

 

[25]      Counsel for the appellant submitted that section 61 of the CPA was not applicable to the circumstances of this matter as the magistrate made findings that the appellant will abscond and that there is a remote possibility that the appellant will interfere. In counsel’s view, the section must be interpreted restrictively in that a court may only invoke section 61 where the court finds that it is unlikely that an applicant for bail will abscond or interfere. In support of this view counsel quoted the matter of S v Adriaan Jacobus Pienaar, [24] to which we return below.

 

[26]      In Charlotte Helen Botha (supra), the court a quo denied bail on a traditional ground that the applicant would abscond without invoking section 61. On appeal, the appellate court disagreed with the reasoning of the court a quo for not invoking the provisions of section 61 simply on the basis that there was not a public outcry.[25] If the bone of contention by counsel in this matter was indeed the correct approach to the application of section 61, then the appellate court in Charlotte Helen Botha (supra) was in the opportune position to have stated that section 61 does not find application because the court below found that the applicant could not prove on a balance of probabilities that if released, he will not abscond. However, the appellate court did not share this view.

[27]      It must be remembered that traditional grounds relevant during a bail enquiry include inter alia, the seriousness of the offence; the strength of the state’s case; whether the accused will stand his trial; will the accused interfere with witnesses; and whether the is accused likely to commit similar offences if released on bail.^[26] These traditional grounds culminate in the ultimate question: whether the interests of justice will be prejudiced if the accused is granted bail?[27] It therefore follows that at the very least, the question of what is in the interest of the administration of justice is an overarching, all-encompassing consideration even when the offence does not resort under Part IV of Schedule 2 of the CPA, as the administration of justice would not permit the release on bail of an applicant who has failed on a traditional ground.

 

[28]      Nonetheless, this court deems it necessary to have a closer look at section 61 of the CPA. The section reads as follows:

 

‘If an accused who is in custody in respect of any offence referred to in Part IV of Schedule 2 applies under section 60 to be released on bail in respect of such offence, the court may, notwithstanding that it is satisfied that it is unlikely that the accused, if released on bail, will abscond or interfere with any witness for the prosecution or with the police investigation, refuse the application for bail if in the opinion of the court, after such inquiry as it deems necessary, it is in the interest of the public or the administration of justice that the accused be retained in custody pending his or her trial.’

 

[29]      When looking at the plain language used, nothing in the above quoted section, other than that the section is applicable to offenses under Part IV of Schedule, reads restrictively or poses a further requirement before the section may be utilised. Moreover, had the legislature’s intention been to restrict the section only to instances when a court finds that an applicant is not likely to abscond or interfere, such restriction could easily have been inserted.

 

[30]      The law relating to the interpretation of a statutory provision is that the words should be given their ordinary meaning and, more importantly, the section must be read in light of the purpose and context for which it was promulgated. In Namibia Association of Medical Aid Funds and Others v Namibia Competition Commission and another,[28] the Supreme Court stated as regards the interpretation to be given to statutory provisions at para 39-41:

 

’This court in Total Namibia v OBM Engineering and Petroleum Distributors [29] recently referred to the approach to be followed in the construction of text and cited the lucid articulation by Wallis JA of the approach to interpretation in South Africa in Natal Joint Municipal Pension Fund v Endumeni Municipality[30].

 

‘Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed; and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighted in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or business-like for the words actually used.’

 

In the Total matter, this court also referred to the approach in England[31] and concluded:[32]

 

‘What is clear is that the courts in both the United Kingdom and in South Africa have accepted that the context in which a document is drafted is relevant to its construction in all circumstances, not only when the language of the contract appears ambiguous. That approach is consistent with our common-sense understanding that the meaning of words is, to a significant extent, determined by the context in which they are uttered. In my view, Namibian courts should also approach the question of construction on the basis that context is always relevant, regardless of whether the language is ambiguous or not.’

 

To paraphrase what was stated by this court in Total, the approach to interpretation would entail assessing the meaning of the words used within their statutory context, as well against the broader purpose of the Act.’ [33] (sic)

 

Section 61 was enacted as an expression of concern by the legislature to the increase in serious crimes and thereby giving the court wider powers when dealing with offences listed under Part IV of the Schedule in bail applications. In our considered view the contention advanced by counsel for the appellant would be tantamount to reading in a restriction which is not encapsulated in the section and would lead to an interpretation adverse to the overall purpose and context under which the section was promulgated. The words ‘notwithstanding’ do not in our view equate to restricting the applicability of section 61 only to instances when a court finds that an applicant is not likely to abscond or interfere. We therefore respectfully differ with the approach taken by the court in the Adriaan Jacobus Pienaar matter (supra). Having perused decisions by this court shortly after the amendment, we find that the approach to be taken is a holistic one rather than restricted.[34]A court should therefore, when exercising such wider powers, look at the evidence holistically when asking itself whether the applicant has discharged its onus on a balance of probabilities. 

 

[31]      The appellant is charged with contravening section 43 (1) of the Anti-Corruption Act 8 of 2003, Corruptly on diverse occasions using an office or position in a public body to obtain any gratification, for his own or another’s benefit, in the amount of N$75 600 000; contravening section 4(b), read with section 1,5,6 and 11 (1) of the Prevention of Organized Crime Act 29 of 2004; and Fraud, committed during August 2014 – December 2019 in the amount of N$75 600 000. All the charges are drafted in a manner as to include the concept of common purpose and the commission of the offences on diverse occasions in terms of section 94 of the CPA.

 

[32]      The state, as it is empowered to do in terms of section 83 of the CPA, drew up 3 separate charges in respect of the same amount of N$75 600 000. As the charges do not stand as alternatives to one another, each charge carries equal weight in the current proceedings. What naturally follows is that if one of the offences fall under Part IV of Schedule 2 of the CPA, section 61 finds application. To this end, the offence of fraud is listed under the said Schedule.

 

Evidence on the charges

 

[33]      From the evidence of the investigating officer, it is alleged that the appellant was handpicked to form a crucial link in the chain of movement of funds which eventually was used for personal gratification by the appellant and his co-accused. It was alleged that the Minister of Fisheries and Marine Resources (accused no.4) allocated fishing quotas to the National Fishing Corporation of Namibia Limited (Fishcor) for purposes of being sold and the funds generated therefrom to be used for governmental objectives. Alleged further, was that the appellant then entered into various usage agreements with other entities referred to as the Samari Group of Companies wherefrom funds were generated.[35] These funds, eventually totalling N$75 600 000 were originally intended for governmental objectives, which included various activities and programs for the benefit of the people of Namibia. However, it was ultimately used for personal gratification. Alleged further was that these generated funds were not paid to Fishcor, but transferred to a trust account of law firm De Klerk, Horn, Coetzee Inc. (DHC). According to the investigating officer these funds eventuated into payments made from DHC to various entities, which were further shown to have been used to purchase movable and immovable properties, including cars, houses and farms with direct links to the appellant and his co-accused. These assets formed the subject matter of illegal appropriation of funds under the guise of governmental objectives and also the prima facie illegal diversion of funds to the trust account of DHC, which otherwise, should have been transferred to Fishcor. Moreover, it was averred that the appellant and some of his co-accused are further members/signatories and/or beneficiaries of legal entities which received monies from entities which were used as vehicles to distribute funds; funds that were paid to and on the instruction by the appellant, totalling millions of Namibian Dollars. The bone of contention by the state is that the appellant, together with his co-accused, not only personally benefitted from funds under the auspices of governmental objectives, but formed part of an elaborate, well-planned and highly sophisticated crime syndicate. The state argued that the moment that the monies were not paid to Fishcor but to a law firm, an offence was prima facie committed. It was further contented that as CEO of Fishcor, the appellant was the accounting officer and the signatory to the usage agreements and that the buck stopped with him. It was submitted that according to his employment contract with Fishcor, para 6.8 states thus: ‘The CEO shall be responsible as the accounting officer of the Corporation and be accountable in respect of all monies received and all payments made by the Corporation’.[36] The appellant therefore knew or was required to know what the purpose of the usage agreements were and the monies generated therefrom was not for personal use. Despite this knowledge, himself and his co-accused benefitted from these payments. It is important to note that the evidence testified to by the investigating officer was not only oral evidence but was supported by various documentary proof tendered in evidence.

 

[34]      Now, has the appellant placed sufficient information before the court dealing specifically with the charges? Additionally, where section 61 finds application, has the appellant shown that the administration of justice and or the public interest permits his release on bail?  According to appellant’s affidavit at para 9, he states that he is not required to exhaustively deal with the charges preferred against him. However, this stance does not necessarily assist the appellant in his bid for bail, simply because he takes the risk of the court only having evidence of the respondent in respect of the charges preferred against him.

 

[35]      Further, in the affidavit of the appellant, he has proffered a bare denial to the allegations contained in the charge annexures. According to counsel for the appellant, the appellant has placed his defence ‘clear and crisp’ on the record. However when asked by the court to indicate where he declared his defence in his affidavit, counsel could do no better than to refer the court to paragraphs 5.8 and 5.9 in his client’s affidavit. The relevant parts of these two sections read as follows:

 

‘….I fail to understand how I could be charged with the charges that have been preferred against me by the State as I had no intention to act unlawfully and or to attract criminal liability in my dealing as the CEO of Fishcor

…………….

…to the best of my knowledge and belief, the state will not be able to present any objective facts that I committed a planned or premeditated criminal acts set out in the charges.’

 

Even by a stretch of imagination, the averments stated in the above extract do no more than to state that the appellant denies the allegations against him. Moreover, assertions during cross-examination by counsel for the appellant suggesting any possible defence were not repeated under oath and therefore carry very little weight, if any.  What can be gleaned from the cross-examination by the appellant’s counsel is that the appellant places the responsibility for the various transactions squarely on accused no.2 and no.4 who, according to him, gave him instructions that he could not object to. This contention, however, has no probative value when unaccompanied by substantiated facts and supportive evidence in contradiction to the allegations of the respondent.

 

[36]      It is ironic that the appellant in his affidavit states that he can do no better than to inform the court that he is not guilty of any offence as a result of him not being in possession of, or provided with, witness statements. Therefore, he says, he is unable to refute allegations levelled against him. This begs the question why he either elected to or was advised to proceed with his bail application on affidavit? This had a direct result of him being unable to place bona fide refutations to factual allegations that would certainly have been put to him. The occasion of cross-examination would have been the opportune time for him to do so. To this end, it is contradictory to allege that you eagerly wish to refute allegations against you, yet you side-step the very opportunity to do so. The direct consequence thereof is that the court is unable to assess the would-be answers/information from the appellant, and where there is no evidence to gainsay the evidence by the respondent other than a mere denial of the allegations, the respondent’s evidence goes uncontroverted.[37] Mindful of the fact that at the occasion of bail, the state will merely show what evidence it has to its disposal to prove the offences preferred against the appellant. It is not the duty of the bail court to decide the guilt or otherwise of the appellant, as this will be done at the trial when evidence is led through the testimony of witnesses. The path chosen by the appellant left the court a quo with tested viva voce evidence on the strength of the state’s case and the evidence upon which the appellant was arrested; evidence which per se carries more probative weight than the mere denial of the appellant on affidavit.

[37]      In addition the appellant at para 20.5 of his affidavit states that he is advised by his legal representative that he does not need to deal with the merits of the matter in the bail application. Although this may hold true, this position might, as shown above, turn out unfavourable to the applicant where circumstances of the matter call for the applicant to deal with the merits to a certain degree. See in this regard what the court stated in S v Dausab,[38] are para 23:

 

‘While it may be correct that the accused is not compelled to address the merits during the bail application hearing, depending on the circumstances of a particular case and the evidence proffered on the merits by the State, a decision by the accused person not to address the merits may turn out to be fatal.’

(Emphasis added)

 

[38]      Moreover in Jesaya Boois vs State,[39] the court occasioned to state at para 28:

 

‘As alluded to earlier on, the applicant declined to go into the merits of the charges he faces, which he is entitled to, on the basis that he would only deal with them at the trial….That being the case, the respondent’s version on the strength of it’s case against the applicant remains un-contradicted.’

(Emphasis added)

 

[39]      The appellant has the onus to place information, including information about the offences charged, before court, showing why he is a candidate for bail.  Particularly where the state alleges that it has strong evidence against the appellant and that a substantial sentence is likely to be imposed when found guilty, which may induce the appellant to abscond or interfere. An applicant is not compelled to place incriminating evidence before the court and has the right to remain silent when that situation arises. However, to a certain degree he is called upon to place information before the court to contradict the respondent’s allegation of a strong prima facie case.   In this regard I cannot find a more fitting exponent  than the passage stated by O’linn J in the matter of Charlotte Helena Botha vs State[40] at p.29 para 2:

 

..’unfortunately some legal practitioners rely on a cliché that the bail enquiry is not the trial, that the guilt or innocence of an accused will only be decided at the trial and that the bail enquiry should avoid the issue of the guilt or innocence of the accused and the nature of the crime if any, committed by the accused.

 

The attitude is based on a misconception. It is true that the guilt or innocence of the accused and the nature of his or her crime will only be finally decided at the trial, using the criteria of proof beyond reasonable doubt, should such trial eventuate. No principle of law of ethics however, require that these issues must be avoided and postponed until the final adjudication at the trial. It is abundantly clear from our case law that the nature of the crime committed and the strength of the State’s case, are extremely relevant at the time that bail is considered.

 

Defence legal practitioners furthermore often rely, as they have done in this case, on the constitutional principle that a person is presumed innocent until proven guilty. Although this principle has always been of importance in bail applications, it should not be taken out of context and distorted.

In the constitution of Namibia this fundamental right is contained in Article 12 under the heading “fair trial”……..

….Article 11 again provides for arrest and detention notwithstanding the presumption of innocence contained in Article 12                                                                                                                                                                                                                        (1) (d).

………

……Even if the accused cannot be compelled to disclose his or her defence at that stage (Bail), disclosure of such defence, cooperation with the investigation and openness at the court hearing, can significantly affect not only the chances of succeeding in the bail application, but may even result in the charges being withdrawn…..

 

….when the defence decides for whatever reason not to cooperate and not disclose the defence, information which is needed by the court for purpose of adjudicating on the bail application is not available. If that information is favourable to the accused, it stands to reason that the defence is at risk to prejudice the accused at the bail hearing by withholding such information. If furthermore the aim is to gain time to concoct a false defence, then the blame for further detention of the accused without bail, lies squarely on the shoulders of the defence.’

(Emphasis added)

 

[40]      It seems apposite to touch on the approach which should be taken when analysing evidence in a bail application. The argument advanced by counsel for the appellant is that the court should, where there is a bare denial in the affidavit of the appellant as to the case of the state, look at the evidence of the investigating officer and see whether it passes muster. As will be discussed below, this submission is far from the mark.  

 

[41]      It is trite law that the strict evidential rules are relaxed in bail applications. However this does not mean that every allegation, unsupported by some form of evidence, should be accepted. Where hearsay or opinion evidence is disputed under oath, its probative value carry very little weight if any. It therefore goes without saying that the court, as the final arbiter, would not simply accept unsubstantiated ipse dixit.[41] This principle however, applies not only to the evidence of the investigating officer and the Prosecutor-General, but to the applicant as well. Defence attorneys in bail applications often submit to court that the mere opinion of the investigating officer should not suffice. But what is often forgotten is that the case for applicant also rests on his mere ipse dixit. The court in such circumstances is left no different than before the application had commenced. What should follow is that the applicant still needs to put his case to the court on a balance of probabilities. In Mathebula (supra) the South African Supreme Court of Appeal faced a scenario similar to this one, where, on appeal, the court a quo faced an application for bail on affidavit and where the appellant simply alleged that the state had a weak case. The Supreme Court had the following to say with regards to the case in point at para 12:

 

‘But a state case supposed in advance to be frail may nevertheless sustain proof beyond a reasonable doubt when put to the test. In order successfully to challenge the merits of such a case in bail proceedings an applicant needs to go further: he must prove on a balance of probability that he will be acquitted of the charge: S v Botha 2002 (1) SACR 222 (SCA) at 230h, 232c; S v Viljoen 2002 (2) SACR 550 (SCA) at 556c. That is no mean task, the more especially as an innocent person cannot be expected to have insight into matters in which he was involved only on the periphery or perhaps not at all. But the state is not obliged to show its hand in advance, at least not before the time when the contents of the docket must be made available to the defence; as to which see Shabalala & Others v Attorney-General of Transvaal and Another 1996 (1) SA 725 (CC). Nor is an attack on the prosecution case at all necessary to discharge the onus; the applicant who chooses to follow that route must make his own way and not expect to have it cleared before him. Thus it has been held that until an applicant has set up a prima facie case of the prosecution failing, there is no call on the state to rebut his evidence to that effect: S v Viljoen at 561f-g.’

(Emphasis added)

 

To this end, the onus of proof lies on the applicant. It therefore follows that a skeleton application or one riddled with mere say-so launched by an applicant, is likely to fail for that reason and not necessarily because the applicant managed to place every allegation made by the investigating officer under cross-examination in dispute, where such dispute is unsubstantiated. In other words even where the case for the state is not necessarily based on the strongest of evidence or shows less than a prima facie proof, this does not automatically discharge the onus on the applicant.[42] There are many reasons why it may be difficult for the state to show complete evidence during a bail application before trial commences, such as i.e. incomplete investigations, the complexity and severity of the offences, syndicate offences, the involvement of cross border investigations, voluminous investigations, the number of accused involved, the number of witnesses and whether they are local and/or international. These factors should be taken into account when analysing the evidence by the state and often requires the adoption of common sense in exercising one’s discretion. 

 

[42]      It is common cause that from the arrest of the accused and his co-accused, the courtrooms have been filled with members of the public and the matter has been widely reported on by the media, though this is not in itself decisive as public expectation is not synonymous with public interest. However, in this matter it remains a factor to be taken into account. This will be taken into account together with the fact that the appellant and his co-accused held public office’s and are entangled in a host of very serious offences where allegations of misappropriation of public funds and money laundering amounting to several millions of Namibian taxpayer’s monies is involved; that there is more than one accused; investigations stretching cross-border and the likelihood of more arrests to be made. For a country which suffers from corruption, fraud and the misappropriation of public and private funds on a daily basis, it is not hard to comprehend why the public has placed their attention and outcry in this matter. In our view the court a quo was completely justified to refuse bail on these factors in terms of section 61 of the CPA.

 

[43]      The seriousness of the offence and the likelihood of a severe sentence to be imposed if convicted may in certain circumstances, in itself,  cause a court to find that it would not be in the interest of the public or the interest of the administration of justice to permit an accused on bail. In the matter of Lazarus Shaduka v The State,[43] Hoff J at para 27, stated in regards to the seriousness of the offence:

                                                                                                                                                                                                                                                                                                                                                                 

 ‘Where an accused person has been charged with the commission of a serious offence, and that if convicted a substantial sentence of imprisonment will in all probability be imposed, that fact alone would be sufficient to permit a magistrate to form the opinion that it would not be in the interest of either the public or the administration of justice to release an accused on bail...’

 

[44]      The days of distinguishing between the seriousness of monetary crimes and violent crimes can no longer be seen to be different in bail applications. Whether the crimes involves public funds or a physical attack on a member of society, if  the circumstances permit, the seriousness thereof must be taken into account when considering bail. In this matter, the misappropriation of public funds affects every individual of the Namibian public and needs to be seen for the detestable crime that it is. This together with the factors outlined above are essentially enough to arouse a court to the view that the administration of justice does not merit the release on bail of an applicant under these circumstances.

 

[45]      Looking at the evidence given by the investigating officer, both orally and the documentary evidence before court, and weighed against the bare denial of the appellant, we are satisfied that the magistrate did not misdirect herself when finding that the state prima facie established the appellant’s involvement in a criminal syndicate; having acted with common purpose in furtherance of illicit transactions and money laundering in an attempt to disguise the source. When dealing with such evidence a court must appreciate the involvement of each member and must be slow to view an individual member’s contribution in isolation, but rather do so in relation to the furtherance of the business of the syndicate.

 

[46]      Counsel for the appellant submitted that the investigating officer was not a credible witness as he made many errors and his testimony was filled with opinion and hearsay evidence. The state however argued that the witness was an honest person. Each time an error was made he corrected and explained himself. To this end, it is trite that the existence itself of an error or contradiction in a witness’s evidence does not per se affect credibility, as not every error is material. A court will evaluate the explanation given by the witness for such error or contradiction, taking into account the nature of the contradictions, the number, importance, and the bearing on other parts of the evidence.[44]  Moreover when looking at the evidence of a single witness, it need not be satisfactory in every respect as it may safely be relied upon even where it has some imperfections, provided that the court at the end is satisfied that the truth has been told.[45]  Looking at the ruling of the learned magistrate, the court a quo specifically mentioned that it had a duty to assess the evidence before it and indicated that the court was satisfied, after such assessment, that the evidence of the investigating officer together with the extensive documentary evidence placed before it, implicated the appellant in the commission of the alleged offences.[46] Even though the court did not in its ruling refer to any errors made by the investigating officer, as submitted by counsel for the appellant, this does not mean it was not taken into account.[47] In the matter of S v De Beer ^[48] the court had the following to say about apparent omissions in the reasoning of a court:

 

‘No judgment can ever be ‘perfect and all-embracing, and it does not necessarily follow that, because something has not been mentioned, therefore it has not been considered.’^[49]

This court is satisfied that the court a quo, when doing its analysis, took into account any perceived errors made by the witness. Suffice it to say, however, that if such errors were material to her decision, it would have been mentioned.

 

[47]      In our considered view it was not wrong of the court a quo to find that section 61 of the CPA is applicable in the circumstances as the crime of fraud is listed under Part IV of Schedule 2 of the CPA. The omission by the court a quo to specify which of the charges fall under Part IV of Schedule 2 of the CPA and which ones don’t, again does not mean that the court did not make the distinction (S v De Beer).

 

[48]      Moreover, it is clear that the court appreciated the evidence led by the state when discussing the manner in which the alleged crimes were committed. Having omitted to deal with each charge separately may simply be indicative of the court finding that the evidence was prima facie sufficient for all three charges facing the appellant. More importantly, it does not taint the evidence before the court.  This court therefore does not find that the approach followed was wrong to the degree where interference by this court would be justified. Therefore this grounds of appeal equally fails.

 

Interference with police investigations

 

[49]      Having stated the above, grounds 1 – 2 attack the court a quo for finding that the appellant will interfere with police investigations. The court a quo reasoned that as a result of the relationship between the appellant and his co-accused and, more specifically with co-accused James Hatuikalipi, accused no.2, who committed an act of interference by submitting a letter to foreign jurisdictions where payments were made in a bid to influence and conceal information from them, there exists a remote possibility that he (the appellant) would interfere with police investigations. Moreover, the court a quo stated that it was common cause and, through the evidence advanced by the investigating officer and counsel for the appellant’s cross-examination that the applicant received and executed instructions from accused no.2; in the court’s view, a self-admitted ‘yes man’. The court a quo thus found that the fear of the state that he may interfere, was genuine.

 

[50]      The appellant also attacks the reasoning of the court a quo where it stated ‘the court is entitled to refuse to release the applicant on bail even if there is only a remote possibility that he will interfere with the investigations’. The question therefore is whether the court was incorrect in holding such position.

 

[51]      When viewing the evidence holistically, particularly because of the chain of command from co-accused no.4 to co-accused no.2 and the appellant, it is not hard to comprehend why the court a quo was of the view there exists a possibility of interference.  This was on the premise that the accused persons operated as a well-orchestrated crime syndicate and because the three accused persons having acted in concert and in common purpose; the action of one brings heightened fear that the other members of the syndicate is likely to do the same. However, is a remote possibility sufficient for a court to find that an applicant for bail will interfere? In our view there has to be some tangible evidence which can be attributed to the appellant, showing possible interference. This evidence must show that the appellant is likely to interfere with police investigations. Therefore in our view, the evidence of his co-accused (James’s) interference, in the normal course, cannot be imputed to the applicant for purposes of his bail application, unless there is additional evidence linking him to such act.

 

[52]      However, the court a quo had wider powers granted to it in terms of section 61 of the CPA. In terms of that section, the court may, notwithstanding that it is satisfied that it is unlikely that the accused, if released on bail, will abscond or interfere with any witness for the prosecution or with the police investigation, find that it will not be in the interest of the administration of justice or the interest of the public to grant bail. To this end, even if there is only a remote possibility of interference, the court will be entitled to refuse bail in circumstances under section 61 of the CPA. In this regard the O’Linn J, in Charlotte Helena Botha (Supra), at p 22, stated

 

‘As pointed out, the enquiry is now much wider. Even though there may only be a remote possibility that an accused will abscond or interfere with police investigation the court will still be entitled to refuse bail in certain circumstances.’

(Emphasis added)

 

[53]      Although the evidence upon which the court a quo relied when making the finding of interference may be criticised, the facts of this matter justify the applicability of section 61. As mentioned herein, the adoption of common sense when viewing the evidence, is crucial. The factors in this case which should be taken into account are that this matter involves more than one accused, with ongoing investigations, the involvement of cross-border investigations and witnesses and many entities locally and internationally. The modus operandi of the appellant and his co-accused, according to the investigating officer, was to channel funds from one entity to the other. It follows that, at least on the facts of this case, the probabilities of interference are more likely and more prejudicial to the investigations. Another aspect is persons involved in this particular offence not yet arrested. Investigations are still on-going and where there is a high number of persons involved, the likelihood of suspects not yet arrested interfering with an accused who is released on bail is high, and stands as a real danger to seeing that justice prevails in a matter of this magnitude.   In S v Du Plessis and Another [50] at p. 85 G-J, the court stated the following:

 

‘It may be that when the investigations is not complete and/or where stolen goods or other exhibits have not yet been recovered in cases of the aforesaid gravity and/or where a large number of accused are involved and charged as co-accused in the same case, that the State case against all or several accused will be severely prejudiced if one or more of the co-accused abscond.

 

In such case there may even be a real danger that the accused persons, other than the particular applicant, or person not yet detained, may, interfere with the applicant if released, because the applicants evidence should he testify in the trial, may be potentially very damaging to such other accused or person.

 

In such a case it may very well be that it will be in the interest of the administration of justice not to take the risk to allow such applicant out on bail even where it is not likely or probable that applicant will abscond or himself interfere with state witnesses or with the prosecution.’

(Emphasis added)

 

To this end, when looking at the facts and the circumstances of this matter holistically, the court below did not misdirect itself when it ruled that a remote possibility of interference was sufficient reason for refusing bail. This ground of appeal similarly stands to fail.   

 

Abscondment

 

[54]      The appellant further attacks the court a quo for failing to consider that the personal circumstances, namely that he is a Namibian citizen, has immovable property and earned a salary, supports certain family members and has no relatives outside Namibia, was not contradicted by evidence shown otherwise. Moreover, that the court made such finding in absence of evidence other than the state having a strong prima facie case.

 

[55]      The mentioned factors, albeit not contradicted, do not per se lead to the automatic candidature for bail, as it is not considered in isolation. The question whether the appellant is likely to abscond is closely linked to the apparent strength of the state’s case and the resultant sentence likely to be imposed. Looking at the severity of the charges the appellant faces and the evidence presented by the investigating officer implicating the appellant, the court a quo cannot be faulted for making such finding on the facts before it. Hannah J in S v Yugin and Others [51] at p.200 A-F stated in this regard:

 

‘..In determining this question (Abscondment) a court will have regard to various matters. The seriousness of the charge which the accused faces is one, but not, as has been judicially pointed out, in itself. I will come to that shortly. The relevance of the seriousness of the offence lies in the sentence which will probably follow upon a conviction. If the probable sentence is one of a substantial period of imprisonment, then there is obviously a greater incentive for the accused to avoid standing his trial than if the probable sentence is an affordable fine.’

(Emphasis added)

 

[56]      The court a quo took into account the offence, the sentence likely to be imposed, the additional charges to be levelled against the appellant and the appellant’s assets and ties to Namibia and found that the inducement to abscond was greater than his mere ipse dixit that he will not. The court a quo found, essentially, that the appellant did not show that he will stand his trial. This court is unable to find that the court a quo erred in its analysis of the evidence and reasoning on this point. This ground of appeal therefore fails.  

 

[57]      The final ground for consideration is the allegation that the learned magistrate seemingly applied the test that the appellant had an onus to prove his innocence of the charges, which is not the test in law for a bail application.

 

[58]      The allegation that the magistrate applied an incorrect test in law is unsupported by authority and incongruous. It is trite that Namibian law recognises a right to apply for bail and not a right to bail.[52] The onus of showing that the ends of justice permit his release and where section 61 is applicable, notwithstanding that he will not abscond or interfere with investigations that the interest of justice and the interest of the public permit his release on bail, lies squarely with the appellant. However it is further trite that an accused person cannot be kept in detention pending his trial as a form of anticipatory punishment as the presumption of the law is that he is innocent until proven guilty. Moreover, a court will ordinarily grant bail to an accused person unless the ends of justice is likely to be prejudiced. However these rights must be read in light of all corresponding principles in the constitution such as arrest and detention and the protection of life, and not in isolation.^[53]

 

[59]      These are necessary for the safety and security of the Namibian society as the very constitution is founded on principles of equality, the rule of law and justice for all.[54] Bail applications and the inquisitorial role played by the court in its adjudication of matters is a necessary tool in the court’s role as administrator of justice. Therefore where a court upholds established principles relating to bail applications, like the onus of proof and the relaxation of evidential rules and special provisions like section 61 of the CPA, it does not mean to say that the court is misdirecting itself. O’linn J in S v Du Plessis and another 1992 NR 74 (HC), at p. 84 stated the following:

 

‘It is apposite here to deal briefly with the continuous and, it seems, selective emphasis placed by some accused person and their legal representatives on certain sections of the Namibian constitution and certain fundamental rights such as “the liberty of the subject”, “a fair trial” and the principle that an accused person is “regarded as innocent until proven guilty”.’

 

These very important fundamental rights are, however, not absolute but circumscribed and subject to exceptions.

 

The particular right relied on must be read in context with other provisions of the Constitution which provided for the protection of fundamental rights of all the citizens or subjects, which provides for responsibilities of the subject, for the maintenance of law and order, for the protection of the very Constitution in which the rights are entrenched and for the survival of a free, democratic and civilised state. ’

(Emphasis added)

 

[60]      For the aforementioned reasons we do not find that the court a quo required the appellant to prove his innocence, but to simply follow well established principles related to the adjudication of bail applications in Namibia. As a result, this ground of appeal fails.  

 

[61]      In the premises, we find on the evidence presented, that the court a quo did not misdirect itself when finding that section 61 of the CPA finds application. Furthermore, in light of the prima facie facts testified to by the investigating officer, there exists a strong case against the appellant and, if convicted, a substantial sentence of imprisonment likely to be imposed. When looking at the seriousness of the offence, the manner in which it was perpetrated and the circumstances surrounding this matter, it is our considered view that it would not be in the interest of the public or administration of justice for the appellant to be released on bail.  Moreover, the shortcomings in bringing the application for bail on affidavit in the particular circumstances of this matter, significantly limited the ambit of the bail application and proved to be prejudicial to the appellant who had to show on a balance of probability that it was in the interest of justice to admit him to bail. The appeal accordingly falls to be dismissed.

 

[62]      In the result, it is ordered:

1. The appeal is dismissed.

2. The matter is finalised and removed from the roll.

 

 

________________

JC LIEBENBERG

JUDGE

 

I agree

 

________________

C CLAASEN

JUDGE

 

 

APPEARANCES

 

APPELLANT                        T Phatela

Instructed by Engelbrecht Attorneys,

Windhoek

 

RESPONDENT                    C.K Luitbezi

Of the Office of the Prosecutor-General,

Windhoek.