CASE NO.: CA
29/2011

IN THE HIGH COURT OF NAMIBIA

In the matter
between

SHAUN ROSS
….......................................................................APPELLANT

versus

THE STATE
…......................................................................RESPONDENT

CORAM:
SIBOLEKA, J

Heard on: 2011
July 18

Delivered on:
2011 August 09

APPEAL
JUDGMENT: (BAIL)

SIBOLEKA J:

[1] This is an
appeal against the Magistrates Court’s refusal to grant bail to
the appellant.

[2] In the Court a
quo, bail was opposed on the following grounds:

• 
  The seriousness
  of the matter

  
  

• 
  Interference

  
  

• 
  Bail was
  previously granted to accused and offences were committed during
  that period

  
  

• 
  The prevalence of
  offence of stock theft

  
  

• 
  Number of cases:
  - 18

  
  

• 
  Fear of
  absconding

  
  

• 
  Strength of the
  State’s case

  
  

• 
  Public interest

  
  

• 
  Further
  investigation will be interfered with if accused person is released
  on bail.

  
  

Mr. Uanivi
appeared both in the Court a quo and in this Court for the
appellant, Mr. Marondedze for the respondent. This Court is indebted
to both counsel’s valuable contributions in this regard.

The appellant’s
main heads of argument does not set out the grounds of appeal
indicating points in law or fact if any where the Magistrate has
misdirected himself in refusing bail.

In his testimony
the appellant said he was born in 1978, and finished his school at
Cosmos High School in Windhoek. His passport had already been taken
by the police. He owns a house in Swakopmund another one in Windhoek
and a big truck, Scania the value of all his property is ±
N$500,000.00. He is a Manager at Klein Spitzkop Transport where he
earns N$5,000.00 per month after deductions. He is a farmer, digs
stones which he sells to tourists. He has three farm workers, a truck
driver , a secretary, and a domestic worker.

His business is
down since his arrest and his elderly parents are taking care of his
property. His mother had a heart attack last year, such that she is
not of much assistance. He has three children aged 12, 6 and 3 years
respectively and they reside with his mother. He is single, but wants
to get married, and his three children require to be taken to school.
His trucks drive out of the country, but he does not do so because he
personally does not have any business or family ties outside Namibia.
In custody he sometimes assists with work outside the Police Cells
and sometimes he is left unattended. He was released on bail of
N$5,000.00 in 2009 on condition he did not interfere with the
investigation. He was re-arrested in 2011 for one case only, and from
there other cases came up when members of the community were given
notice by the traditional leader to come at his farm and identify
their animals. This they did on skin colour and birthmark without any
proof of ownership.

He testified that
he never made or tried to make contact with the investigation officer
or any of the witnesses on the matter. Whenever he has credit he only
calls his parents.

He said there was
no demonstration against him on this matter and neither was he
threatened by any member of the public should he be released. He was
also never approached by any member of the print media on that score.
He however read a newspaper report where the investigating officer,
Uirab allegedly gave information and told members of the community to
come to Court and demand that he not be released on bail. He will
plead not guilty to all the charges, because all the animals that
were identified belong to him and he has proof to that effect.

The claims against
him are about animals that disappeared between 2008 and 2009 without
indication of the dates. According to him all these claims started
after his re-arrest, and he wonders why the claimants did not make
any reports to the police at the time of losing the cattle. According
to the appellant that is how he came up with 18 cases involving more
than 60 cattle, and there are altogether 15 complainants still
unknown to him.

At that stage his
health was well, but he has a heart problem as a diabetic person. He
injects himself with insulin and in a “To whom it may concern
letter” his doctor confirmed that he also has blood pressure
which could be worsened by overcrowdiness, cigarette smoking and
smoke inhalations. In my view the contents of this letter has been
taken care of since the appellant was transferred to Arandis. This
was confirmed by the investigation officer in his evidence during the
bail application. The appellant will be allowed free access to the
recommended food supplies brought by his relatives. The prescribed
foods are a cup of skimmed milk, whole wheat, butter, and juice for
breakfast. He testified that he is unable to eat recommended foods
because there is nothing in custody where he is. There he is given
porridge and kitchens are dirty and full of cockroaches all over.
According to him they don’t have a non smoking cell, and
generally cells are dirty and overcrowded. He feels dizzy, is
sweating and is being treated as if he has no rights. I must mention
here that the appellant’s right to freedom was affected when he
was re-arrested on fresh stock theft charges.

He said he has 4
to 5 stock theft cases in Khorixas where he was granted N$6,000.00
bail.

He further
testified that he wanted to be granted bail because of his business.
Two of his employees are married and want to be paid. Those in the
transport business only want to do business with him and not his
parents. His mother did not go to Parama Hospital in South Africa
because he could not provide her with money. His children are being
teased around at school, and should this Court consider bail in his
favour, he is able to afford N$5,000.00 and has no objection to any
conditions.

Jefrey Uirab
testified in opposition to the granting of bail in his capacity as
the investigating officer. According to him the cases relating to the
appellant that he investigated were at an early stage. He feared that
the same would be interfered with if the appellant was released on
bail. He stated that when the appellant’s brand iron mark was
confiscated by the police, he made two more for himself, something
which according to this police officer should not have been done. He
testified that stock theft is high at Usakos and surrounding areas
which according to him negatively affects community members who
largely depend thereon. He is investigating five stock theft cases
against the accused and ten at Usakos. Appellant has three stock
theft cases in Khorixas for which he had been granted bail. He stated
that there is a public outcry by community members requesting that
the police should protect their animals. As part of their work with
communities, police officers are thus allowed to attend such
meetings.

He denied ever
organizing mass protests against the appellant being granted bail.
According to him such an exercise is not allowed. He testified that
he has a strong case against the appellant. He further stated that he
went to Veterinary offices at Omaruru but could not find any record
of the accused’s stock book or registration. According to this
officer all stock bought at auction pens are registered and the same
is done when they arrive at the buyers farm. This record is then
availed to the Veterinary offices.

This officer
testified that complainants used to come and make reports about their
stolen animals and entries were made in the Police Occurrence Book.
Copies thereof were later attached to the dockets. When Head Office
gave them a go ahead to allow members of the public to come to the
appellant’s farm to see if they could identify their animals,
that was done. He said it was only after animals were identified by
their respective owners that cases against the appellant were opened.
This witness testified that the appellant was not denied access to
medication, and that if that was the case he did not report it to the
Station Commander in order to be sorted out.

According to him
Police Cells at Usakos are very small and that is why some inmates
are transferred to Arandis where there is more space.

In
cross-examination this officer confirmed that the appellant has five
cases at Karibib, and 20 stock theft complainants from Omaruru,
Karibib, and Usakos. According to him it will not be in the interests
of justice to release the appellant on bail.

In his oral
arguments before Court Mr. Uanivi said medical prescriptions from the
doctor were handed into the Court a quo during the bail
application. According to this counsel these related to the
appellants diabetic condition and needs, but perusal of the record
from the Lower Court only has a ‘to whom it may concern
letter’. The appellant’s evidence in chief and
cross-examination does not mention or refer to any medical document
handed into Court. This also seems to be the case from the following
questions posed by Mr. Uanivi to the investigation officer.

At page 40 of the
record in the Court a quo

Q:
Accused 1 applies for bail because his health condition is worsening
– tell the Court what is the procedure of accused in custody to
receive proper health treatment and a strict diet?

A:
Is true that we don’t give special food – but if there is
a special diet – accused can make an application to be
transferred to where his doctor is and for a special diet.

Q:
Such application can be made through a letter.

A:
If he has proof of a special diet he can give to the Station
Commander to act on it.

Q:
On 2 March 2011 that if such diet prescriptions arrive –
arrangements can be made?

A:
Correct.”

From the above it
is unlikely that other medical documents relating to the appellant’s
diabetic condition were handed in during the bail hearing.

In addition to the
above here is how the appellant sketched the reason for his desire to
secure a release on bail, on page 18 of the Court a quo’s
record:

“I
want to be granted bail because of the business – two of my
employees are married and they want to be paid. And
as for the transport business they want to do business only with me
and not my parents, My
under-

lining

My
parents health is deteriorating and my mother was supposed to be in
SA at Parama Hospital but she couldn’t go as I couldn’t
provide her with money.” My underlining

The appellant
clearly emphasized the deteriorating health of his parents and the
state of his business as the reason why he wanted to be released on
bail, instead of his heart problem and ‘blood pressure’.

The appellant
conceded during cross-examination that he was already on bail when
fresh allegation of stock theft were made against him. The learned
Magistrate in the Court a quo referred to this aspect in his
reasons for refusing bail. This is an unhealthy state of affairs that
operates against the appellant. In my view he is expected to know
that he runs a risk of not easily convincing the Court to be
reconsidered for bail after his re-arrest. It is also interesting to
note that the same allegations of stock theft were again leveled
against him while on bail.

Section 3 of Act 5
of 1991 reads:

“3
The following section is hereby substituted for section 61 of the
principal Act:

61.
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, not withstanding
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 interests of the public or the administration of
justice that the accused be retained in custody pending his or her
trial.” My own underlining.

I agree with the
reasoning in the authorities cities by Mr. Uanivi and in my view the
Magistrate’s decision is within the rationale expressed
therein. One of such cases is the unreported judgment of Timotheus
v The State, delivered on 22 August 1995 where Strydom, JP as he
then was stated that:

“Considerations
such as public interest may, if there is proper evidence before the
Court, lead to refusal of bail even where the possibility of
abscondment or interference is remote.”

I am unable to
find fault or a misdirection in the reasoning of the Magistrate for
refusing bail. The appellant had already been granted bail but did
not behave properly, and as a result new allegations of stock theft
resurfaced again. In my view the justice system could easily be seen
not to care for what the appellant is allegedly doing to other
people’s animals. I also agree with the reasoning of the
Magistrate that sugar diabetes is treatable. The investigation
officer testified that he is not aware of any report relating to
refusal for the appellant to access any form assistance from his
relatives and no report in that regard has been made to the Station
Commander.

In the result I
make the following Order:

1. 
   The appeal fails.

   
   

2. 
   The appellant’s
   relatives must be allowed free access to the appellant whenever they
   bring the basic needs he requires, this includes food and
   medication.

   
   

3. 
   The appellant
   must be taken for medical attention if he so requests, and this must
   be attended to without fail.

   
   

_________________

SIBOLEKA, J

COUNSEL ON
BEHALF OF THE APPLICANT: MR. UANIVI

INSTRUCTED BY:
LEGAL AID

COUNSEL ON
BEHALF OF THE RESPONDENT: ADV. MARONDEDZE

INSTRUCTED BY:
THE OFFICE OF THE

PROSECUTOR-GENERAL