and

CORAM:
HANNAH,
J et
MARITZ,
J et
MAINGA,
J

Heard
on: 2001-08-31 Delivered on: 2001-10-15 JUDGMENT

2. The
order of the first respondent made in the Magistrate's
Court,
Oshakati, in case no. 491B/2000 on 5^th
July 2001 refusing to release the
applicant under Article
12(l)(b) of the Constitution from the conditions
of her bail is
set aside and substituted for the following order:

"The
accused is released on bail in the amount ofN$50 000.00 and she is
warned to appear in the Regional Magistrate's Court at Oshakati on
13 July 2001, failing which, she may be arrested and her bail may be
forfeited";

2. 
   The
   applicant is released in terms of Article 12( 1 )(b) of the
   Constitution from all the conditions of her bail other than those
   contemplated in the order under paragraph 2;

   
   

3. 
   The
   second respondent is ordered to pay the costs of the application."

   
   

We
said that we would give our reasons for making the order at a later
date. Our reasons are as follows.

We
heard the application on 31^s1
August simultaneously with an appeal brought by the applicant
against the order of the first respondent made on 5^th
July and referred to in paragraph 2 of our order made on 7^th
September. When dealing with the background I will extract certain
facts which are to be found in the appeal record.

The
applicant is a Zambian citizen married to a British national. They
have six year old twins and their home is in the United Kingdom. In
February, 1997 the applicant was appointed as Chief Executive
Officer of a Non-Governmental Organisation called CD Namibia which
had its offices at Ongwediva. She lived there with her husband and
children and her contract was due to expire at the end of July,
2000. According to the applicant, she discovered some evidence of
financial irregularities at CD Namibia in March, 2000 and made a
report to the board as a result of which the finance officer,
Ndamona Ndeulita, was suspended. An internal investigation began.
Then on 27^th
June,
2000 the applicant was arrested on suspicion of having committed
theft or fraud. She appeared before the Oshakati Magistrate's Court
and was remanded in custody. On 4^th
July the

State
opposed an application for bail on several grounds, including the
lengthy period of time it would take to complete the investigation,
and the applicant's legal representative did not pursue the
application. On 9^th
August a further application for bail was made and this time the
State did not oppose. Bail was granted in an amount of NS150 000,00
and the applicant was required to report twice daily at Oshakati
Police Station, to surrender her passport, not to leave the District
of Oshakati without permission and not to enter the premises of CD
Namibia. The case was adjourned to 14^th
August. On that day the public prosecutor informed the court that
the investigation was incomplete and there was a further adjournment
to 12^lh
September. On that date the public prosecutor informed the court
that he did not know how far the investigation had progressed and
there was a further adjournment to 16^th
October. Further adjournments were granted at the instance of the
State on 16^lh
October and 29^th
November and it was during the latter month that the applicant's
husband was required to leave Namibia with the children because
their temporary visas had expired. They returned to the United
Kingdom.

On
7^th
December the applicant's legal representative informed the court
that CD Namibia, the complainant in the matter, had withdrawn its
complaint and he asked that all conditions of bail be removed except
that the applicant be required to report once daily. The State
agreed that the reporting condition be reduced to once daily but
otherwise opposed the application. It was pointed out that it was
for the Prosecutor-General to decide whether the case against the
applicant should be withdrawn and as it involved N$l 000 000,00 all
the other conditions of bail should remain in place. This submission
was upheld by the magistrate and the case was postponed to 19^th
December for the finalisation of the investigation.

On
19^th
December Ndamona Ndeulita was joined as second accused and she was
granted bail of NS50 000. The State was still not ready to proceed
and the case was postponed to l^stFebruary,

2001.
On that day the public prosecutor informed the court that the case
was still under investigation and a further adjournment was granted
to 9^lh
April. On 9^lh
April the position remained unchanged but the applicant had had
enough. Her legal representative opposed the State's application for
a further three month postponement. The applicant was called to
testify. She said that the investigation had been continuing for
nine months and no explanation for the delay had been given. CD
Namibia had conducted its own internal investigation and she
considered that four weeks would have been sufficient to complete
the police investigation. She had not seen her husband and children
for five months and this caused her great distress. However, the
magistrate granted the State's application and the case was
postponed to 24^th
July.

The
applicant then appealed against the magistrate's order granting a
postponement and the appeal came before the High Court on 15^th
June. Also before court on that day was an application by the State
that the matter be remitted to the Magistrate's Court for a proper
hearing of the applicationfor postponement. The basis for that
application was an allegation that the magistrate had erred by
allowing the applicant to testify before the investigating officer
was called and then compounded that error by refusing to allow the
public prosecutor to call the investigating officer. The High Court
ruled in favour of the State and remitted the matter to the
Magistrate's Court for further consideration.

On
26^th
June the application for a postponement resumed in the Magistrate's
Court and the State called the investigating officer, Inspector
Mulimina. His explanation for the delay in completing the
investigation was that in July, 2000 he was told by the lawyer
acting for CD Namibia and the lawyer acting for the applicant that
they were endeavouring to settle the matter and that he should put
the investigation on hold. This, he said, he did. Then in November
he received a letter from CD Namibia's lawyer stating that its
differences with the applicant had been settled and that it wished
to withdraw all criminal charges against the applicant. The matter
was referred to the Prosecutor-General 's office and it was only in
December that he was instructed to continue with the investigation.
When the application for a postponement was made in April, 2001 he
had only spent four months on the investigation and this was not
enough. He required a further three months to complete it and this
led to the application for a three month postponement.

Mulimina
also testified that there was a prima facie case against the
applicant and gave details. The amount involved, he said, was N$2
800 000,00. However, in cross-examination the Inspector changed tack
and said that it was not his case that the applicant had committed
fraud or theft in an amount of N$2 800 000,00 and in re-examination
he went so far as to say that there was only a prima facie case
against the applicant in connection with the sale of a Mazda motor
vehicle for the sum of N$22 000,00. Also in cross-examination
Mulimina conceded that had the applicant wished to do so she could
have absconded to England. He trusted her not to do so.

The
lawyer who had acted for CD Namibia, Johannes Greyling, was also
called by the State to give evidence. He said that he had informed
Mulimina that settlement negotiations between the complainant and
the applicant were about to take place and sought his permission
which was granted. He also told Mulimina that he thought it would be
a waste of time to continue with the investigation if a settlement
was going to be reached but he did not tell him to stop the
investigation. That, he said, was in the discretion of the
investigating officer and the State.

One
other matter of some relevance which emerged during the June hearing
was that the investigation had been completed and the docket had
been submitted to the Prosecutor-General for consideration.

At
the conclusion of the hearing counsel for the applicant submitted
that any further postponement should be refused, alternatively that
if a postponement was to be granted that the applicant be "released"
in terms of Article 12(1 )(b) of the Constitution.

That
Sub-Article provides:

"A
trial referred to in Sub-Article (a) hereof shall take place within
a reasonable time, failing which the accused shall be released."

A
criminal trial falls squarely within Sub-Article (a).

The
magistrate gave her nding on 5^,h
July. With regard to the concessions made by Mulimina she said that
the court:

"is
not bound by the suggestions of the investigator and if the court
finds that the suggestion are not in the interest of justice, the
court can rule otherwise."

I
would
say in passing that although it is undoubtedly correct that a court
is not bound by any concessions made, or opinions given, by an
investigating officer when considering applications for bail or for
a postponement, it would be a bold court indeed which ignores
entirely that kind of material especially if it emanates from a
senior police officer.

The
magistrate then went on to say that there were no grounds for
refusing a postponement as the investigation had been completed and
the docket was with the Prosecutor-General. As for the application
brought in terms of Article 12(l)(b) she ruled that the delay in
completing the investigation was not caused by the State and that it
would not be in the interest of the administration of justice to
order the release of the applicant.

Having
given her ruling the magistrate was then informed by the Deputy
Prosecutor-General that the Prosecutor-General had decided that the
applicant should be arraigned in the Regional Court on charges of
theft of N$2 894 740,10 and corruption. The Deputy
Prosecutor-General asked for the case to be transferred to that
court. The magistrate then made such an order and the applicant was
required to appear at the Regional Court on 13^th
July. On that date the trial was fixed for 22^nd
October,
2001. That date is approximately sixteen months after the arrest of
the applicant.

That
brings me to the present application which was launched on 9¹
August. The principal reason for the delay in launching it was that
the typed record of the June hearing in the Magistrate's Court did
not become available until the end of July. In the Notice of Motion
the applicant sought the following relief:

"1.
Condoning the Applicant's non-compliance with the rides of the High
Court and ordering that this matter should be heard as one of
urgency as envisaged in Rule 6(12) of the rules of the High Court of
Namibia.

2. 
   Ordering
   that the proceedings in the Magistrate's Court for the district of
   Oshakati, held at Oshakati in case number 491/B/2000 (State versus
   Margaret Malama-Kean) be set aside.

   
   

3. 
   Ordering
   that the Applicant be released, forthwith, as envisaged in Article
   12(l)(b) of the Constitution of the Republic of Namibia.

   
   

4. 
   Ordering
   the Second Respondent to pay: (i) the costs of this
   application;

   
   

(ii) the
costs of the High Court proceedings incurred by the
Applicant in
the appeal lodged by the Applicant against the
nding or order of
the First Respondent handed down on 9
April 2001;

(iii) the
costs incurred by the Applicant in all the proceedings
conducted
in the Magistrate's Court for the district of
Oshakati after 30
July 2000, to date, on a scale as between
attorney and own
client.

5.
Further
and/or alternative relief."

In
her founding affidavit the applicant recounts the history of the
matter and makes three complaints concerning the June hearing in the
Magistrate's Court. She complains that she was not afforded the
opportunity to respond to the allegation that the delay in
completing the investigation was due to the action of her own
lawyer. That admissible evidence was rejected. And that the
presiding magistrate displayed bias against her. A further complaint
relates to the transfer of the case on 5¹
July
to the Regional Court. It is only necessary to deal with the first
of these complaints. The applicant states that neither she nor her
lawyers were aware of the fact that the investigation had been
halted. Had she been aware of this she would have immediately
instructed her lawyers to object to her initial remands in custody
and to the subsequent imposition of stringent bail conditions. The
applicant annexes to her founding affidavit an affidavit sworn by
Arumugam Thambapilai, the lawyer who allegedly told Mulimina to put
the investigation on hold, and an affidavit sworn by Richard
Metcalfe, the lawyer who represented her in the Magistrate's Court
on a number of occasions. Thambapilai denies giving any orders to
Mulimina to halt the investigation and deposes that had he been
aware of the fact that the investigation had been halted he would
have objected to the postponements sought by the State on those
occasions when he represented the applicant at the Magistrate's
Court. Metcalfe states that he also was unaware that the
investigation had been halted and had he been made aware of this he
would immediately have drawn it to the magistrate's attention.

The
respondents' answering affidavit was sworn by Olyvia Imwala, a
Deputy Prosecutor-General. She annexes an affidavit sworn by
Mulimina. In that affidavit he states that Thambapilai requested him
in July, 2000 to suspend the investigation and that he heeded the
request. Mulimina then adds that during the period from the end of
July, 2000 he did in fact obtain certain statements and documents
concerning the investigation but only those which were easily
obtainable. No mention is made of this in the affidavit of Mulimina
which was placed before the High Court on 15^th
June in support of the State's application to have the case remitted
and it is in stark contrast to the Inspector's testimony in the
Magistrate's Court. In that testimony he stated in terms that:

"I
stopped the investigation as it was put on hold."

and

"I
only investigated this case as from December to March 2001."

The
admission made by Mulimina that he did in fact obtain certain
statements and documents must be viewed in the light of the fact
that the State provided the applicant with a copy of the
investigation diary on 24^th
August, 2001, the very same day that Mulimina swore his affidavit.
This diaiy tells a very different story to that told by Mulimina
when he testified in the Magistrate's Court. According to the
investigation diary, which is annexed to the applicant's replying
affidavit, Mulimina took at least twenty statements between the end
of July and November, 2000 and also obtained a variety of documents.
If the investigation diary is correct, and there is no reason to
think that it is not, Mulimina withheld this vital information when
making the affidavit which was placed before the High Court and also
when testifying in the Magistrate's Court. And it is also highly
significant that the alleged instruction given to Mulimina to stop
the investigation finds no mention in the diary.

The
affidavits which have been filed do, of course, reveal a dispute of
fact and the general rule is that relief may only be granted if the
facts as stated by the respondent together with the admitted facts
in the applicant's affidavits justify an order. However, there are
exceptions to this general rule. Where a statement in the
respondent's affidavits is clearly untenable then the Court may

These
two concepts namely 'release, because the trial has not taken place
within a reasonable time' and 'acquit' where the trial has been
completed appear in the same Article. It is therefore logical to
contrast the concepts and not to give them the same meaning.

It
is true the framers of the Constitution did not recite what the
effect of a 'release' would be. This is not a casus
omissus as
it was not necessary to elaborate on the normal consequences of a
person who is being prosecuted, being released. A person who is
prosecuted is arrested in order to be prosecuted but may be on bail.
Where such person is released from arrest and bail it does not
terminate the prosecution. One can attend a trial on a 'warning'
from the Court and one can be on one's own recognisances and still
be prosecuted.

In
R
v Stevens 1969(2)
SA 572 (RAD) at 577, Beadle CJ said;

' when
the meaning of a section is plain the mere fact that there may be a

casus
omissus in
the section does not seem to me to justify a departure from its
plain meaning and this is more especially so when that plain meaning
appears to accord with the intention of the Legislature.'

In
any event there is no need to interpret the Sub-Article as having a
'casus
omissus'. In
Dhanabakium
v
Subramanian
and Another 1943 AD
160 at 170-1, Centlivres, J A said;

'The
conclusion at which I have arrived avoids what would otherwise be a
casus
omissus in
sec. 70 and it seems to me that if a reasonable construction of an
Act does not lead to a casus
omissus while
another construction does lead to that result, the construction
which should be applied is the one which does not lead to that
result.'

I
conclude this aspect by once again referring to the Full Bench
judgment in Mwandinglii's
case
quoted above, where the learned judges referred with approval to the
remarks of Gwyer CJ which included a warning that in the
interpretation of Constitutions one should not 'supply omissions'
even when applying that 'broad and liberal spirit' for interpreting
Constitutions. To give the word release its ordinary meaning (to
release from arrest or bail) fits in with the scheme of the
Constitution and with the existing Common Law and the Criminal
Procedure Act (Act 51 of 1977) applicable before Independence in
Namibia and since Independence by virtue of Article 140 of the
Constitution. An example illustrates a situation which could arise
if the obiter
dictum in
Heidenreich's
case
is correct. Theft in terms of the Common Law is a continuing
offence. SvElling
1945
AD 234

An
accused embezzles and steals N$ 10,000,000-00 over a period of years
and invests it in a bank in Europe. He is arrested but due to his
cunning, the investigation is involved. A person cannot take
advantage of his own bad faith. Therefore any delay in his trial
caused by his own cunning will not accrue to his benefit in deciding
whether there has been an unreasonable delay. The State, however,
similarly cannot benefit from its own ineptitude and if due to such
ineptitude the investigation after his arrest is unduly and
unreasonably delayed, the accused would be entitled to his release
in terms of Article 12(1 )(b). If that meant that prosecution was
permanently stayed, the accused would be able to enjoy the spoils of
his crime with impunity while still committing theft. This could
never have been intended by the framers of the Constitution."

With
great respect, I do not see how the example given at the end of this
passage supports the reasoning. The only two significant
consequences of theft being regarded as a "continuing"
crime are 1) that the thief may be tried at the place where he is
found with the stolen property; and 2) those who assist the thief
after the initial contrectatio
but
while the theft "continues" are guilty of theft itself.
See South
African Criminal Law and Procedure (Vol
II) at 629. I fail to see how consequences of a technical nature
such as these could have had any impact on the framing of Article
12( 1
)(b)
of the Constitution.

In
its reasoning the Court proceeded on the supposition that the
ordinary meaning of "released" in the context of the
Sub-Article is released from arrest or bail. In making this
supposition the Court appears to have considered that an acquittal
and a permanent stay of prosecution amount to the same thing. The
Court said:

"These
two concepts namely 'release, because the trial has not taken place
within a reasonable time' and 'acquit' where the trial has been
completed appear in the same Article. It is therefore logical to
contrast the concepts and not to give them the same meaning."

I
cannot agree. An acquittal is a setting free by verdict. A release
from prosecution is a setting free as a result of an entirely
different process. It is manifestly clear to my mind that "released"
in the context of Article 12(1 )(b) can have three meanings namely,
released from arrest/custody, released from conditions of bail and
released from further prosecution, and in order to determine whether
the word bears all or some or one of these meanings the Court is
entitled to take a broad, liberal and purposive approach. That is
what the Court did mHeidenreich's
case (supra) and
it concluded that release from custody or from onerous conditions of
bail only meets part of the purpose of the Sub-Article. I adhere to
that view. Relief granted in terms of the Sub-Article can constitute
not only release from custody and release from bail or conditions
attached to bail; but it can also constitute release from further
prosecution.

Any
conclusion other than that reached in Heidenreich's
case (supra)
would mean that the trial of an accused person could be delayed
indefinitely. A refusal to postpone could be followed by a
withdrawal of the charge in terms of section 6 of the Criminal
Procedure Act and this could be followed by a fresh prosecution and
so on. An accused in such a case would indefinitely suffer social
stigma, inconvenience and other pressures without remedy. Another
illustration, which I think is apt, is the case of an accused who,
by reason of unreasonable delay on the part of theState, has
suffered irreparable trial prejudice. Vital defence witnesses have
died or disappeared. According to the judgment in the Van
As
case (supra)
the
accused who finds himself in such a situation has no remedy in terms
of Article 12(1 )(b). He must battle on without such witnesses. That
could never have been the intention of the Founders of the
Constitution. In my respectful view, to follow the Van
As case
(supra)
would
render Article 12(l)(b) partly ineffectual and for the reasons just
given I do not intend to do so. I should mention that even Mr Botes,
who appeared for the respondents, stated that he could not support
that decision.

As
for the order which this Court made on 7^th
September, we considered whether to make an order releasing the
applicant from further prosecution but decided against doing so. It
is a drastic order and, as was pointed out in the Sanderson
case
(supra)
at
245 g-h, it is likely to be made only in a narrow range of
circumstances such as where it is established that the accused has
probably suffered irreparable trial prejudice as a result of the
delay or where the State embarks on a deliberate stratagem of delay.
As stated earlier, trial-related prejudice is only speculative at
this stage. And the delay for which the State was responsible was
caused by neglect, not willfulness. The alternatives to making an
order releasing an accused from further prosecution are an order
releasing him from custody or an order releasing him from some or
all conditions of bail. The relief to be given will, of course,
depend on the circumstances of each case and will be governed by

HANNAH,
J

I
agree.

I
agree.

MAINGA,
J

For
the applicant: Advocate
R Heathcote

Instructed
by: Messrs
H Barnard & Partners