Court name
High Court
Case number
CRIMINAL 130 of 2001

Malama-Kean v Magistrate for the District of Oshakati N.O and Another (CRIMINAL 130 of 2001) [2001] NAHC 35 (15 October 2001);

Media neutral citation
[2001] NAHC 35




of "released" in Article 12(l)(b) considered. The Court
differed from the judgment in van as &
Court held that "released" constitutes not only release
and release from bail
conditions of bail; but also release from further










September, 2001 we made the following order in this application:

The Notice of Motion is amended by the insertion of the words
"and/or the decision of the first respondent on 5
July 2001" after the word "proceedings" in paragraph
2 thereof;

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

2. The
order of the first respondent made in the Magistrate's
Oshakati, in case no. 491B/2000 on 5
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:

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

  1. 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;

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

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

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

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
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
July the

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
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
August. On that day the public prosecutor informed the court that
the investigation was incomplete and there was a further adjournment
to 12
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
October. Further adjournments were granted at the instance of the
State on 16
October and 29
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

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
December for the finalisation of the investigation.

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

On that day the public prosecutor informed the court that the case
was still under investigation and a further adjournment was granted
to 9
April. On 9
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

applicant then appealed against the magistrate's order granting a
postponement and the appeal came before the High Court on 15
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.

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.

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.

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.

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.

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.

Sub-Article provides:

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

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

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

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."

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.

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.

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
July. On that date the trial was fixed for 22
2001. That date is approximately sixteen months after the arrest of
the applicant.

brings me to the present application which was launched on 9
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:

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

  1. 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.

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

  3. Ordering
    the Second Respondent to pay: (i) the costs of this

(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
in the Magistrate's Court for the district of
Oshakati after 30
July 2000, to date, on a scale as between
attorney and own

and/or alternative relief."

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
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.

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
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:

stopped the investigation as it was put on hold."


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

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
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.

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

it merely on the papers.
Associated South African Bakeries (Pty) Ltd
Vereinigte Backereien (Pty) Ltd en Andere
SA 893 (A) at 923G-924D. In my view, the statement made by Mulimina
that Thambapilai requested him to suspend the investigation falls
squarely into this category. Once account is taken of the
investigation diary kept by Mulimina it becomes clear that his
stratagem of laying the blame for the delay in completing the
investigation at the feet of the applicant is without proper
foundation. What happened seems to me to be clear. Mulimina pursued
the investigation with some vigour but a month or so after learning
that settlement negotiations were in progress he lost interest and
for several months did nothing. The delay complained of is the
responsibility of the State.

even if we were to decide this matter on the basis of the alleged
instruction by the defence lawyer to stop investigations we would be
driven to the same conclusion. Once the State commences criminal
proceedings it has a duty actively to pursue those proceedings. It is
not for the State or its officials to take instructions and allow the
proceedings to lie dormant.

applicant asserts that the delay in bringing her to trial was
unreasonable and that her constitutional right to be tried within a
reasonable time has therefore been infringed. What constitutes a
reasonable time for the purposes of Article 12(l)(b) was considered
at some length in
NR 234 and I do not propose to repeat what was said in that case in
this connection.

started to run on 27
June, 2000 when the applicant was arrested. At that stagethe police
had not started their investigation. The arrest was made on the
complaint of CD Namibia and was in

nature of a pre-emptive strike due to the fairly imminent departure
of the applicant from the country. In these circumstances there was a
heavy burden on the State to pursue the investigation with vigour and
complete it as soon as was reasonably possible. Yet it was not until
June of the following year that the investigation was completed and
the earliest trial date which could be given was October, 2001, some
sixteen months after the applicant's arrest. That, in my view, is
delay which is presumptively prejudicial.

take account of the fact that the case against the applicant is, in
all probability, a complex one but that does not weigh too heavily
with me. I respectfully agree with the following observation of
Kriegler, J. in
Eastern Cape
SACR 227 at 243 f:

a person has been charged very early in the complex case that has
been inadequately prepared, and there is no compelling reason for
this, a court should not allow the complexity of the case to justify
an over-lengthy delay."

there is the neglect on the part of the investigation officer to
pursue the in\estigation with vigour. The ultimate responsibility for
such neglect must rest with the State, not the applicant.

there is the question of the applicant asserting her rights. While it
is true that it was not until April, 2001 that the applicant resisted
an application by the State for a further postponement she and her
lawyers had, in the year 2000, been misled by statements by the
public prosecutor suggesting that the investigation was continuing
when in fact it was not. As the applicant's lawyer, Thambapilai,
states, and it is stated on oath, had he been aware of the fact that
the investigation had been halted he would have objected to the

to the question of prejudice suffered by the applicant due to the
delay, there are present tre obvious kinds of prejudice such as
social prejudice and the requirement in her conditions of bail that
she reports daily to the police. But looming larger is the fact that
her husband and children were required to leave Namibia and as a
result of the delay she has been separated from her family month
after month. Also, she has not been in a position to take gainful

under the heading of prejudice lies the question of trial-related
prejudice. The applicant alleges that due to the inordinate delay it
will be difficult, if not impossible, to trace potential defence
witnesses many of whom will have left the country as CD Namibia has,
since her arrest, ceased its operations. The applicant can do no more
than generalize because at the stage when this application was
launched she was not in possession of the prosecution docket and
therefore had no knowledge of the details of the case being presented
against her. Trial-related prejudice is only speculative at this

was pointed out in
is required when considering whether the time which has lapsed in
bringing an accused to trial is reasonable or not is a balancing
exercise and ultimately a value judgment. Having weighed and
considered all the factors just mentioned I am satisfied that the
trial of the applicant has not taken place within a reasonable time
and accordingly she is entitled to relief in terms of Article

brings me to the meaning to be given to the word "released"
as used in the Sub-Article. In
following was said on this question at 242 F- 243 A:

question was briefly considered by O'Linn in
v Strowitzki and Another
BCLR 12 (Nm) at 35-6. Having referred to what is called in the United
States 'dismissal with prejudice' and the fact that according to
certain writers this remedy is only permissible in the United States
where the ability of the accused to defend himself is gravely
impaired, the learned Judge continued:

Namibian Constitution provides a specific remedy for failure to bring
to trial within a reasonable time, namely: "The accused shall be

appears to mean 'released from incarceration'. It may also include
release from onerous conditions of bail.
does not seem to include a permanent quashing or stay of

Mr Small, who appeared for the State, pointed out to us by reference
to certain dictionaries, the term 'released' can have a variety of
meanings and could, as O'Linn J rather tentatively concluded, mean
freed from custody or relieved from certain onerous conditions of
bail. But when regard is had to the underlying purpose of art 12( 1
)(b) I am of the view that a broader, more liberal, construction
should be given to the word. Once the main purpose of the sub-article
is identified as being not only to minimize the possibility of
lengthy pre-trial incarceration and to curtail restrictions placed on
an accused who is on bail but also to reduce the inconvenience,
social stigma and other pressures which he is likely to suffer and to
advance the prospect of a fair hearing, then it seems to me that
'released' must mean released from further prosecution for the
offence with which he is charged. It is only by giving the term this
wider meaning that the full purpose of the sub-article is met.
Release from custody or from onerous conditions of bail only meets
part of the purpose of the sub-article."

in the case of
As & Another
267/99) a Court comprising of three judges took a different view of
the matter. It made a declaration that where an accused is released
by virtue of the provisions of Article 12(1 )(b) such release will
not constitute a permanent stay of prosecution. The
was a curious one. Van As and his co-applicant were on trial in the
High Court on a charge of murder. They wanted to bring an application
for their release in terms of Article 12(l)(b) but before doing so
applied to the High Court to

guidelines as to the procedure to be followed and the legal
principles applicable to an application for the permanent stay of
criminal proceedings in terms of an accused person's right to a fair
trial in terms of Article 25(2) of the Namibian Constitution."
The application then posed a number of questions.

contending that the Court had jurisdiction to provide guidelines and
lay down legal principles, counsel for the applicants purported to
rely on Rule 33(4) of the High Court Rules but in its judgment, which
was delivered on 14 December 2000, the Court held that that Rule was
not applicable. The Court then went on to consider whether the word
"release" in Article 12(1 )(b) means release from
prosecution and made the declaration to which I have already referred
purporting to do so, according to the written judgment, in terms of
section 16(4) of the High Court Act. The reference to (4) must have
been a mistaken reference to (d).

material part of section 16 reads as follows:

High Court shall have jurisdiction over all persons residing or being
in and in relation to all causes arising and all offences triable
within Namibia and all other matters of which it may according to law
take cognizance, and shall, in addition to any powers of jurisdiction
which may be vested in it by law, have power-



in its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination."

very much doubt whether the declaration made by the Court constituted
a determination of an "existing, fumre or contingent right or
obligation" but even if it does it is quite clear that in the
application before the Court there was no person, let alone an
interested person, seeking such a determination. The meaning of
"release" in Article 12(l)(b) was not a question before the
Court. And neither counsel for the applicants nor the Deputy
Prosecutor-General, Mr Small, who appeared for the State, argued for
the restrictive construction which the Court ultimately gave to
Article 12(l)(b). It must follow that what was said by the Court in
that connection was entirely

apart from the foregoing, and I say this with great respect for the
learned judges concerned, I am convinced that the decision was wrong.
The principal reasoning appears in the following


great respect to the learned judges who heard
the effect of Article 12(l)(b) was never intended to be more than
release 'from arrest or from onerous conditions of bail' as decided
by O'Linn J
v Strowitski
BCLR 12 (Nm) (judgment delivered on 22
April 1994). The learned judges in
gave to the word 'release' a meaning to 'acquit'. At page 239 I to J,
the Court said;

general approach when construing constitutional provisions is that
the provisions are to be 'broadly, liberally and purposively'
of the Republic of Namibia
SA 407 (NmS) at 418F, and if this canon of construction is to be
relied upon it is as well to identity expressly the underlying
purpose of the constitutional provision under consideration.'

due respect, this 'canon of construction' does not permit a court to
give a word the meaning it does not have.

In Minister of Defence v Mwandinghi
NR 63 at 69 I to J a Full Bench in a joint decision by Berker CJ,
Mahomed AJA and Dumbutshena AJA said the following: 'H M Seervai,
citing what was said by Gwyer CJ, remarked, in
Constitutional Law of India
ed Vol I at 68, that

broad and liberal spirit should inspire those whose duty it is to
interpret the Constitution; but I do not imply by this that they are
free to stretch or pervert the language of the enactment in the
interests of any legal or constitutional theory, or even for the
purposes of supplying omissions or correcting supposed errors.'

is trite that a court must start with the interpretation of any
written document whether it be a Constitution, a statute, a contract
or a will by given the words therein contained their ordinary literal
meaning. The Court must ascertain the intention of the legislators or
author or authors of the document concerned and there is no reason to
believe that the framers of a Constitution will not use words in
their ordinary and literal sense to express that intention. As was
said by Innes CJ in
v R
T.S. 910 at 913; 'By far the most important rule to guide courts in
arriving at that intention is to take the language of the instrument,
or of the relevant portion of the instrument, as a whole; and, when
the words are clear and unambiguous, to place upon them their
grammatical construction and give them their ordinary effect.' This
has been followed in Namibia on countless occasions. Where a
particular word in its ordinary sense has more than one meaning, an
ambiguity can arise and only then does one have recourse to other
methods of ascertaining the intention of the authors concerned as to
what the meaning was which the authors intended the word should have.
One need not consult a dictionary for the meaning of the word
'release'. It is frequently used by members of the public and by
lawyers in courts and in documents. In the instant case, the word is
used in Article 12 which deals with a fair trial. In the same Article
the framers of the Constitution used the word 'acquit' and dealt with
the effect thereof, namely, having been acquitted an accused could
not be charged again.

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.

is true the framers of the Constitution did not recite what the
effect of a 'release' would be. This is not a
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.

v Stevens
SA 572 (RAD) at 577, Beadle CJ said;

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

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.'

any event there is no need to interpret the Sub-Article as having a
and Another 1943
160 at 170-1, Centlivres, J A said;

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

conclude this aspect by once again referring to the Full Bench
judgment in
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
is correct. Theft in terms of the Common Law is a continuing
AD 234

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."

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
while the theft "continues" are guilty of theft itself.
African Criminal Law and Procedure
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
of the Constitution.

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:

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."

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
case (supra)
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

conclusion other than that reached in
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
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
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.

for the order which this Court made on 7
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
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

type of, and extent of, prejudice suffered as a result of the
unreasonable delay in bringing him to trial. In the instant case we
considered that appropriate relief would be to remove most of the
bail conditions leaving only a monetary deposit of NS50 000. If
Mulimina is right in his estimation of the applicant she can be
trusted to return to Namibia for her trial.




Botes submitted that even if we should find in favour of the
applicant we should not make a costs order against either of the
respondents. Neither, he submitted, was responsible for the delay.
That responsibility lay with the police. In my opinion, that
submission is only partly correct. Although direct responsibility for
the delay lay with the police those who represented the second
respondent at the numerous applications for postponement could have
done much more to ascertain the true state of affairs and the second
respondent did, of course, choose to oppose this application.
Accordingly, we saw fit to order the second respondent to pay the
applicant's costs of the application. However, we could find no basis
for awarding the costs sought in prayer 4(H) and (iii) of the Notice
of Motion.


the applicant:
R Heathcote

H Barnard & Partners

the first and second respondent: Instructed by:

L C Botes

Government Attorney