CASE NO.: CA
12/2012

IN THE HIGH COURT OF NAMIBIA

In the matter
between

FADI AYOUB
...........................................................................APPELLANT

versus

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

CORAM:
SIBOLEKA, J

Heard on: 2012
March 27

Delivered on:
2012 June 06

APPEAL
JUDGMENT: (BAIL)

SIBOLEKA J:

[1] On 30 April
2012, I dismissed an application for appeal against the refusal by
the Magistrate’s Court Windhoek to release the applicant on
bail.

I indicated then
that my reasons will be furnished later, they are now available and
are as follows:

[2] The appellant,
a 44 year old Lebanese Muslim National, is allegedly a suspect on a
rape charge committed in France in 1992. After his appearance in
Court there, he was admitted to bail, but absconded and did not stand
his trial, resulting in an international warrant of arrest being
issued against him.

[3] After
Magistrate Nandango, Windhoek, has endorsed that warrant of arrest
for execution in Namibia, the appellant was placed in custody on 01
March 2012. On 02 March 2012 he unsuccessfully launched an
application for his release on bail pending the outcome of an
extradition enquiry as contemplated in section 12 of the Extradition
Act, Act No. 11 of 1996.

[4] The purpose of
the bail application in the Court a quo was to determine
whether the applicant should be allowed to stay outside or be placed
in custody for the duration of the extradition proceedings, and the
outcome whether he should be sent back to France or not.

[5] In this Court
the appellant was represented by Mr. Geier on the instructions of
Shikongo Law Chambers, while Ms. Katjipuka appeared for the
respondent.

[6] The grounds of
appeal are as follows:

“(a)
That the learned Magistrate erred and/or misdirected herself in

concluding:

“Is
this person going to stand his trial? Is this person going to wait
for enquiry to be conducted? I doubt.”

In
the absence of any evidence of which any such ‘doubt’
could be based;

(b)
That the learned Magistrate erred and misdirected itself in finding
that it would not be in the interests of justice to admit the
Appellant to bail.”

[7] The appellant
testified under oath in the Court a quo in support of

his application
and stated the following:

[7.1] He came to
Namibia in 1999, married a Namibian lady in community of property on
05 December 2003 and has two children. He resides in this country
since then. In 2003 he left Namibia and went to reside in
Bloemfontein, South Africa for five years in order for his wife to
finish a degree specializing in anesthetic there. He permanently
returned to Namibia in 2007 and is residing with his family at 66
Eros Road, Eros Park. His wife’s practice is in Sinclair
Street, Windhoek. He has two Lebanese passports, one valid, the other
expired. He applied for South African citizenship and he has got it.
They only go out during holidays and come back to their home. He has
a valid re-entry visa for Namibia and a pending application for
domicile. The one year renewable residence permit visa is endorsed in
the Lebanese passport. His entry visa expires on 18 August 2012. He
was arrested on a charge of rape in 1992, released on bail, absconded
in 1993 due to youthfulness and according to him he acted stupid. He
knew about the Interpol Warrant of Arrest against him two and a half
years ago. Despite this knowledge, he testified, he has left and
returned to Namibia several times. He rents out a bulldozer and sells
imported vehicles on a small scale. He has a feeding lodge in
Rehoboth and contributes half to a monthly bond installments on the
properties in Eros Park. He owns movable assets such as motor
vehicles and cattle. He has deep emotional and family roots within
Namibia.

[7.2] He was taken
in custody after the Interpol Warrant of Arrest was endorsed here in
Namibia.

[8] On the alleged
rape charge in France the appellant testified that he moved to Rouen,
some kilometers outside Paris in 1993. He was in partnership with
Lebanese people, one of whom lived in a Restaurant business there.
There he met a lady by the name of Jamilla Ultruiz, a mix of Algerian
and French nationality. They were in a relationship, and this
complainant at times used some drugs such as cocaine, and as a result
thereof they argued on many occasions.

[8.1] The
appellant is of Muslim religion, he does not drink or use alcohol.
Talking about suicide and other related stuff caused regular break
ups in their relationship, but he nonetheless felt responsible and
carried on with her. The complainant one day came home crying, it was
a very terrible situation. He opened the door of the house for her
and they had something to eat. Thereafter they had sex together in a
very normal way, such that he did not foresee a charge of rape coming
his way, hence his defence of consensual sexual intercourse.

[8.2] The
complainant did not tell him how he raped her. She was always running
after money, and had sucked a lot from him. When he woke up in the
morning the following day a police officer was around his bed and he
was taken to the Police Station. He was held for 48 hours, and
charged for rape. He was put in goal, and was later released on bail
in January 1993. He ran away from France, according to him he acted
stupid because of his then youthful age, 25.

[8.3] One day the
appellant appeared before a Judge for an enquiry in order for him to
give a statement. As he stood outside in the Court yard, the Judge
called a police officer and told him ‘bring that Muslim guy who
raped the lady’. At 25 years then, when he heard this he
decided to run away. That was how he came to Namibia to stay, and got
married. He was scared about issues of racism.

[8.4] That same
year he went to Angola four times trying to do some business but he
didn’t have enough money. His brother was doing business at
Oshikango for a couple of years, he and his partner invited him to
come to Windhoek. At some stage he also went out of Namibia to
Morocco in 2002 to do business with a Lebanese guy there. He also
visited Lebanon and then Syria for a religious ceremony. It was in
that same year that he met his wife on the aero plane, and started
dating her.

[8.5] At the
moment he farms with ± 400 cattle 50 kilometers outside
Windhoek. Sixty percent of this property is owned by his wife and
forty percent by her grandmother. He owns a bulldozer which he rents
out on an hourly basis. There is game on the farm, with sheep and
goat farming also taking place. He imports vehicle for sell on a very
small scale. He also farms with parrot birds, they share premiums and
it is registered in his wife’s name. They have a 3400 square
meter erf in Chamonix Street, Ausblick which is registered in a CC.
The wife owns ninety percent and he owns ten percent. The close
corporation owns the property in Auasblick. The appellant and his
wife are the owners of the close corporation which in turn owns the
property.

[8.6] The
appellant intends to become the full owner of that erf in Ausblick.
He has a feeding lodge in Rehoboth which he established nine months
ago. This property belongs to Trans Namib, and he is contracted for
five years to buy cattle, feed them and sell them to Meatco. He
enjoys the first option to renew and to buy it. The property is
valued at N$212,000.00 he was still busy with the electrical fence.
He has 100 tollies valued at N$450,000.00 on the property ready to be
fed and to be sold to Meatco for slaughter. On his name is a fully
paid up Land Cruiser 2010 valued at N$350,000.00 and two vehicles,
used to transport workers, a Nissan and a Toyota Corolla.

[9] The
appellant’s counsel referred to various cases, among these
were:

Koch v The
State CA 111/2002 delivered on 12 December 2002 where the Court
ruled that one of the circumstances prompting the Appeal Court to
conclude that the Magistrate exercised her discretion wrongly is when
her conclusion is vitiated by a misdirection.

[9.1] In the
matter of S v Essack 1965(2) SA 161 at 162 C, the Court stated
that in bail applications a balance must as far as that can be done
be made between protecting the liberty of the individual and
safeguarding and ensuring the proper administration of justice.

[9.2] In S v
Bennet 1976(3) SA 652 CPD at 655 G: The Court stated that the
proper approach should be that, unless the State can say “that
there is a real risk that he will,” not “merely may”
interfere, there does not appear to be a reasonable possibility of
interference with the investigation.

[9.3] According to
the appellant’s counsel the above authorities make it very
clear that in refusing bail to the appellant the Magistrate has
misdirected herself as she should not have done so, but should have
granted it. In my view, it is not correct to argue that the above
cases displace the Magistrate’s reasons for refusing bail at
all.

[10] In the Court
a quo, and indeed before this Court, the Prosecutor opposed
the release of the applicant on bail. The fear is that he will
abscond in the same way he did in France when bail was granted to
him. With that opposition placed before the Court a quo the
appellant felt there was a need for him to testify under oath to
persuade the Court to find and rule in his favour and grant him bail.
In my view it is not correct to suggest that bail should only be
refused where there is evidence countering that of the appellant.
Every case must be treated on its own merits. On this matter the
evidence of the appellant, without any countering testimony was
sufficient enough, such that from it the Magistrate was able to see a
reasonable possibility that if he is released on bail he will not
stand his trial and neither will he wait for the conclusion of his
extradition proceedings. Magistrate Nandango was therefore entitled
and has indeed correctly based her decision on the evidence of the
appellant himself. I hold the view that there is judicially nothing
wrong in such an exercise.

[11] The appellant
argues that if released on bail he will not abscond because his
personal circumstances have now changed completely as follows:

• 
  He is now 44
  years of age, married to a Namibian Anesthetic doctor with two
  children;

  
  

• 
  He has a farm
  outside Windhoek and has property and business interests in the
  country;

  
  

• 
  He testified he
  had consensual sexual intercourse with the complainant in France.
  

  
  

[11.1] According
to him the words “Bring that Muslim guy who raped the lady”
frightened him, he took them serious and decided to abscond and leave
France. These remarks, so he testified, coupled with the fact that he
was then only 25 years of age, made him act stupid by not attending
the this trial to the end. In my view the above factors are by and
large outweighed by the following considerations emanating from the
appellant’s own evidence:

[11.2] Looking
carefully at the countries the appellant has visited, Angola, Syria,
Lebanon and South Africa, it is my considered view that the only
reasonable impression that comes to one’s mind is that he has
friends and acquaintances there, where if he so elects can easily go
and reside to evade being traced.

[11.3] The fact
that the appellant’s defence to the alleged charge of rape is
consensual sexual intercourse but nonetheless still elected not to
attend trial on his own accord and state his innocence accordingly.

[11.4] The handing
in of all the travelling documents in his possession would not be of
much assistance because it is common knowledge that a person can
enter and leave this country illegally, without a passport.

[11.5] The
possibility of the extradition proceedings not unfolding in his
favour, the perceived racial remarks by the examining Judge in
France, the eventual pertinent consequence of being tried in what he
views will be a hostile Court; (a reason which, coupled with his age
of 25, made him act stupid and absconded), his election to rather get
arrested here in Namibia than going back to France at his own accord
and convenience all bear testimony to the possibility of a likelihood
that the appellant may abscond if he is released on bail.

[11.6] He has
learnt about the Interpol warrant of arrest against him, two and half
years back, so he testified, and had already been arrested and
released at some stage, but still he did not make any efforts to go
back on his own accord and stand his trial.

[12] From the
above it follows that his contention that if released on bail with or
without strict bail conditions he will not flee as he did 19 years
ago cannot be relied on. The purpose of the extradition proceedings
is to determine whether he should be deported back to France for the
trial of the matter or not.

[13] In S v
Acheson 1991(2) SA 805 (Nm) at 822 A-E Mahomed AJ as he then was
had the following to say regarding an accused’s release on
bail:

“The
Court will therefore ordinarily grant bail to an accused person
unless
this is likely to prejudice the ends of justice.”

(My own
underlining)

[13.1] From the
above it is clear that it is not a requirement that a ‘real
risk’ should exist or should be established before bail can be
refused, not at all.

[13.2] The Judge
went further and stated that:

“The
consideration which the Court takes into account in deciding this
issue include the following:

1. 
   Is
   it more likely that the accused will stand his trial or is it more
   likely that he will abscond and forfeit his bail? The determination
   of that issue involves a consideration of other sub issues such as
   

   
   

1. 
   how
   deep are his emotional, occupational and family roots within
   the country where he is to stand trial

   
   

2. 
   what
   are his assets in that country
   

   
   

3. 
   what
   are the means that he has to flee from the country

   
   

4. 
   how
   much can he afford the forfeiture of the bail money

   
   

5. 
   what
   travel documents he has to enable him to leave the country
   

   
   

6. 
   what
   arrangements exist or may later exist to extradite him if he flees
   to another country

   
   

7. 
   how
   inherently serious is the offence in respect of which he is charged

   
   

8. 
   how
   strong is the case against him and how much inducement there would
   therefore be for him to avoid standing trial

   
   

9. 
   how
   severe is the punishment likely to be if he is found guilty

   
   

10. 
    how
    stringent are the conditions of his bail and how
    difficult would it be for him to evade effective policing of his
    movements. (My own underlining)

    
    

[14] It is also
interesting to note that in the Acheson case although the Court
ordered stringent bail conditions to be put in place, the accused
absconded and was never tried for his crime of murder to this day.

[15] Carefully
looking at the then and present circumstances of the appellant, the
evidence placed before the Court a quo, the submissions by
both counsel in this Court and the observations that I have alluded
to above, I have not been persuaded to find that Magistrate Nandango
has misdirected herself or exercised her discretion wrongly when she
refused to grant bail to the appellant.

[16] It is my
considered view that the Magistrate’s doubts that the appellant
was a person that was going to stand his trial or wait for the
conclusion of his extradition enquiry were correctly based on the
evidence of the appellant himself. The wording of her decision to
refuse bail is crystal clear and no further explanation or details
were necessary.

[17] The interests
of justice were already frustrated the time the appellant failed to
stand his trial in France and in my view bail was correctly refused
in the Court a quo to prevent a repetition of that same
frustration.

[18] I am
therefore not convinced that the change in the appellant’s
personal circumstances has affected his original decision not to
stand his rape trial in France. Therefore the Windhoek Magistrate’s
refusal to release him on bail was legitimate, correct and I have no
reason to fault it.

_________________

SIBOLEKA, J

COUNSEL ON
BEHALF OF THE APPLICANT: MR. GEIER

INSTRUCTED BY:
SHIKONGO LAW CHAMBERS

COUNSEL ON
BEHALF OF THE RESPONDENT: MS. KATJIPUKA

INSTRUCTED BY:
THE OFFICE OF THE

PROSECUTOR-GENERAL