CASE NO.: CA 43/2012

IN THE HIGH COURT OF
NAMIBIA

In the matter between:

ELIAS P HANGOMBE
.............................................................................APPELLANT

and

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

CORAM: SMUTS, J

Heard on: 23 August 2012

Delivered on: 23 August 2012

EXTEMPORE JUDGMENT

JUDGMENT:

SMUTS, J: [1]
This is an appeal from the Regional Court in Windhoek against the
refusal to grant the appellant bail pending his trial on a charge of
robbery with aggravating circumstances. It is alleged that he,
together with his co-accused, robbed the complainant of U$145 000 in
Windhoek.

[2] The notice of appeal against this
refusal of bail was filed out of time. The appellant then also brings
an application for condonation for that late filing. The State
opposes that application only on the ground that the appeal does not
enjoy prospects of success and not on the basis of the explanation
which was provided.

[3] I accordingly proceeded to hear
argument on the merits of the appeal. At the time of the bail
application, the appellant was 29 years old and a Namibian citizen.
He testified that he lived at his parent’s home in Katutura,
although a year before his arrest it would appear that he spent most
of his time staying over at his girlfriend’s residence in
Khomasdal.

[4] The robbery was committed on 3^rd
May, 2008. But he was arrested in November/December, 2011. He gave
evidence at the bail application as did the investigating officer,
Inspector Amakali. Bail was opposed on the ground that the appellant
was likely to abscond.

[5] It emerged from Inspector
Amakali’s evidence that seven other accused were arrested in
2008 and had remained in custody pending the trial. He said that the
appellant was implicated by a co-accused who had already pleaded
guilty and had been sentenced. She was a certain Ms Elizabeth
Shigwedha.

[6] According to her the appellant was
part of the planning of the robbery and had driven the vehicle which
had transported all the accused from the scene of the crime. This was
according to Ms Shigwedha’s affidavit.

[7] He also stated that the accused
had established from her whether she could speak Portuguese.
According to Inspector Amakali, Ms Shigwedha said that the robbery
had been planned in a vacant house nearby the appellant’s
parents’ residence. Ms Amakali had booked herself into the
establishment where the robbery took place on the day before and had
provided a remote control to the gate for the alleged robbers to flee
from the scene and said that the appellant had driven the getaway
vehicle. Inspector Amakali testified that in Ms Shigwedha’s
statement there was however only reference to a certain George, and
not to the appellant by name. But he said the connection was given to
him orally by her. Inspector Amakali also testified that the
appellant’s cell number was no longer used after his co-accused
were arrested and that there would be evidence at the trial that the
appellant’s cell number had been used to contacted Ms
Shigwedha.

[8] In his evidence the appellant said
that he had owned two taxis at the time of the robbery, but could not
recall the names of the drivers used at that time. He denied any
involvement in the robbery and said that he mostly stayed at his
parent’s house which was nearby Inspector Amakali’s home
and that the latter would have seen him at a nearby car wash over the
period of time following the robbery and before his arrest.

[9] Certain important issues which
were that referred to, namely that he was apparently referred to as
George in Ms Shigwedha’s statement and the evidence concerning
the cell phone, were however never put by the prosecutor to the
appellant in cross-examination.

[10] This was rightly criticised by Mr
Namandje who appeared for the appellant. Ms Verhoef who appeared for
the State correctly conceded that the prosecutor should have put
these issues to the appellant.

[12] Mr Namandje referred me to the
well-known authority of the President of the RSA v The South
African Rugby Football Union 2000 (1) SA 1 (CC) from paragraph 61
to paragraph 65 in which the full court of the South African
Constitutional Court restated the duties to cross-examine witnesses
in respect of evidence within the knowledge of the cross-examiner. I
do not propose to quote the full portion of the lucid exposition of
the legal position in this regard in any detail. But I do want to
point out that the duty to cross-examine and the rules relating to it
are obviously not to be applied in a mechanical way, but always with
due regard to all the facts and circumstances of each case as was
stated in that South African judgment.

[13] The object of cross-examination
and its proper observance, although very important, should be
considered in the full context of the facts. In this case what is
important is the incidence of the onus given the fact that an
appellant seeking bail has the onus of establishing that it
should be granted.

[14] It was pointed out by Ms Verhoef
that the appellant who was represented in the bail application as
well was in possession of Inspector Amakali’s statement in
support of the warrant of arrest for the appellant in 2008, where his
aliases and the fact that he was known as George were referred to.

[15] She submitted that it was thus
apparent to him to deal with this in his evidence-in-chief as he had
done so in respect of the other allegations against him in connection
with the robbery, but he did not do so. There is some weight to this
submission in the context of all the facts.

[16] As far as the other issue is
concerned relating to the cell phone, Ms Verhoef submitted that if
that issue was canvassed in the docket which had been disclosed to
the appellant, it was then open to the appellant to put those
instructions to his counsel in the course of the bail application or
he could have even applied to have the witness recalled to address
those aspects of evidence. There was an entitlement on his part to
make such an application.

[17] I do however regard that the
failure to have put this aspect to be of some importance and that
although it was open to the appellant to have taken these courses, I
remain of the view that the prosecuting counsel should at least have
addressed this issue and canvassed it in cross-examination with the
appellant. But as Ms Verhoef submitted, the failure to have done so
would not necessarily entitle the appellant to bail.

[18] I now proceed to further address
that issue. Inspector Amakali said that he feared that the appellant
would likely abscond. He had a warrant issued for his arrest in 2008.
When he went to the appellant’s parent’s house where he
apparently had stayed, the family members were rude and were
distinctly unhelpful and disavowed any knowledge of the appellant and
his whereabouts. He thus did not go back there. The appellant was
subsequently only arrested more than three years later, following
information he had received from an informant.

[19] The Regional Magistrate refused
bail. In her reasons provided shortly after the hearing of the
application she had in fact stated that, there were two
considerations which were prominent in her reasoning. The first was
her statement that the appellant had failed to establish a defence
which had reasonable prospects of success to the trial and then
referred to his defence as a mere denial.

[20] Secondly she stated that in her
judgment there was a likelihood that if the appellant were to be
released on bail he would attempt to intimidate witnesses such as
Inspector Amakali and others not known to him. Therefore it was in
the interest of the public and the administration of justice not to
allow the appellant to be released on bail. Mr Namandje rightly
criticised this reasoning and submitted that they constituted
misdirections.

[21] Ms Verhoef conceded that the test
was not properly stated as one of establishing reasonable prospects
of success in the trial and also correctly conceded that there had
been no evidence that the appellant would intimidate any witnesses.
Indeed this had at no stage even been suggested by Inspector Amakali.

[22] There was thus no basis for that
conclusion and both these considerations constitute misdirections.

[23] Ms Verhoef however argued that
the bail should not have been granted in any event. She referred me
to section 61 of the Criminal Procedure Act as amended by Act 5 of
1991. She correctly contended that this amendment applied by virtue
of the fact that robbery with aggravating circumstances is one of the
crimes listed in the schedule.

[24] The test after all as set out in
section 65(4) of the Criminal Procedure Act when hearing an appeal of
this nature is that a court is not to set aside the decision refusing
bail, unless the court is satisfied that the decision was wrong, in
which event the court shall give a decision which in its opinion the
lower should have given. The question is whether the decision to
refuse bail was wrong or not. That is after all what is appealed
against and not the reasoning given by the Magistrate.

[25] Even if there are material
misdirections contained in the reaching of that conclusion, as
occurred in this case, this court is still required to consider the
question as to whether the decision itself was wrong and whether bail
should have been refused or not and to do so in the context of
section 61 in its amended form.

[26]
Mr Namandje also criticised the approach of the State in relying
heavily upon hearsay evidence. But, as was stressed in State
v Yugin and Others¹,
what the
prosecution essentially has to do is not to prove the guilt of the
accused, but rather to demonstrate through credible evidence the
strength or apparent strength of its case. This is usually done
through the mouth of an investigating officer.

[27] That is precisely what has
occurred in this case. The outline of the case provided by the
investigating officer dealt with a number of specific allegations
against the appellant. This is unlike the instance relied upon by Mr
Namandje where the case in question referred to a series of vague and
unspecified allegations raised in the context of that bail
application.

[28] The appellant was after all
implicated by a co-accused in planning and participating in a
robbery. This not only involved the planning of the robbery, but also
in providing the getaway vehicle. Although the name of George was not
put to him and his name did not appear in the statement given by the
co-accused, he would have been aware of it, but did not deal with
this issue in his evidence.

[29] His evidence was also vague and
evasive in respect of a number of material issues. He had said that
he had stayed over at his girlfriend’s place for much of the
period preceding his arrest. At times he referred to this as more
than a year. But on his own version he had mostly stayed there during
that period which was three years. He was furthermore unable to
provide the address of his girlfriend’s residence where he had
so regularly stayed. He could not provide an erf number, a street
number or even a street name except to refer to the general vicinity
as part of Khomasdal.

[30] He was also unable to provide the
names of his taxi drivers at the time of robbery, although he
mentioned that he had kept some records as to who drove taxis and
that he maybe could still find them. These were not produced. Against
this background of his evidence must be weighed the evidence of
Inspector Amakali. He had looked for the appellant at his parent’s
home and he was told he was not there and that they did not know
where he was.

[31]
The appellant was eventually arrested elsewhere after a tip off by an
informant. This had been three years after a warrant of arrest had
been issued. Inspector Amakali was concerned that he would not stand
trial and would abscond if released on bail. It would rather seem, as
Ms Verhoef submitted, that the appellant was lying low after the
arrest of his co-accused. I must take into account that there is a
strong prima
facie case
against the appellant if Ms Shigwedha’s evidence in implicating
him is given and is corroborated by the cell phone records as was
indicated by Inspector Amakali.

[32]
I also take into account the seriousness of this offence, where a
long term of imprisonment would probably follow a conviction. This
court has recently stressed the severity and seriousness of robbery
with aggravating circumstances².
Whilst there was no evidence of any intimidation of witnesses or even
a suggestion to that effect, the Magistrate clearly was misdirected
in referring to this as a consideration involved in the refusal of
bail. But when I consider the evidence as a whole, I am of the view
that it shows that the accused is likely to abscond and not stand his
trial. I stress that even if I were incorrect in reaching that
conclusion, the evidence viewed as a whole would at least demonstrate
a reasonable possibility that it may happen that the appellant would
abscond. Given the seriousness of the charges levelled against him
and the weight of the case against him, I am of the view that it is
not in the interest of the administration of justice that the
appellant be released pending the outcome of his trial or pending his
trial.

[33] It would follow that the decision
reached by the Magistrate to refuse bail, even though involving
faulty reasoning, was not wrong and that bail should not have been
granted. It therefore also follows that there are thus not in my view
reasonable prospects of success in this appeal, despite the
misdirection.

[34] For those reasons, because of the
fact that I would not grant the appeal and do not consider that the
Regional Magistrate was wrong in refusing bail, I am not inclined to
grant condonation for the late filing of the Notice of the appeal for
the reason that there are not reasonable prospects of success in the
appeal. That is the conclusion I reach. Condonation for the late
filing of the notice of appeal is accordingly refused and the appeal
is struck from the roll.

___________

SMUTS, J

ON BEHALF OF THE APPELLANT
MR KAMANJA

Instructed by: Sisa Namandje & Co.
Inc.

ON
BEHALF OF THE RESPONDENT MS VERHOEF

Instructed
by: Office of the Prosecutor-General