Malama-Kean v Magistrate of the District of Oshakati NO and Another (SA 4 of 2002) [2002] NASC 15 (14 October 2002);
CASE
NO.: SA 04/2002
IN
THE SUPREME COURT OF NAMIBIA
In
the matter between:
MARGARET
MALAMA-KEAN APPELLANT
and
THE
MAGISTRATE OF THE DISTRICT FIRST RESPONDENT
OF
OSHAKATI NO
THE
PROSECUTOR-GENERAL NO SECOND RESPONDENT
CORAM: Strydom,
C.J.; O’Linn, A.J.A. et Chomba, A.J.A.
HEARD
ON: 2002/06/21
DELIVERED
ON: 14/10/2002
APPEAL
JUDGMENT
O’LINN,
A.J.A.:
SECTION
A:
INTRODUCTORY
REMARKS
The
appeal before us is against an order of the High Court made in a
review application combined with an appeal where the applicant sought
to have an order set aside which was made by the Magistrate for the
District of Oshakati on 5th July 2001 “refusing to
release the applicant under article 12 (1)(b) of the constitution.”
Mr
Heathcote appeared before us for the appellant, Mr Botes for the
first respondent and Mr January for the second respondent.
Although
Mr Botes and January each provided this Court with written heads of
argument, they informed this Court at the outset that the argument
will be combined and Mr Botes will present the viva voce argument.
It
should be noted at the outset that the arrest of the applicant and
the subsequent legal proceedings, followed upon a complaint by CD
Namibia, a non-governmental organization, apparently engaged in
activities for the upliftment of Namibians, with head office in
Oshakati, alleging that substantial sums of money had been stolen,
apparently by one or more of its employees. At the time which this
was discovered, the applicant was the Chief Executive officer of the
complainant.
I
will hereinafter refer to the parties in this appeal as in the Court
a quo.
The
application for review to the Court a quo, was based in
essence on the following allegations:
There
was a gross irregularity in the proceedings; admissible evidence were
not admitted; the first respondent, the magistrate for the District
of Oshakati, who presided in the proceedings, had an interest in the
course of the proceedings; the said magistrate was biased,
alternatively, the applicant was entitled to perceive her as biased;
she was not independent because she was until shortly before the
applicant’s arrest, a prosecutor in the region, whereafter she was
elevated to the post of magistrate.
It
was further submitted on behalf of applicant that the cumulative
effect of the aforementioned irregularities was that the applicant
did not have a fair trial as envisaged by article 12 of the Namibian
Constitution in the proceedings before the magistrate and could not
have a fair trial if the trial continued because of the pre-trial
irregularities; the applicants trial also did not take place within a
reasonable time and accordingly she “shall be released” as
envisaged in Article 12 (1)(b) of the Namibian Constitution.
The
relevant part of the order made by the Court a quo on 7th
September 2001, reads as follows:
“2. The
order of the first respondent made in the Magistrate’s Court,
Oshakati, in case no. 491B/2000 on 5th July 2001 refusing
to release the applicant under Article 12(1)(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 of N$50 000.00 and she is
warned to appear in the Regional Magistrate’s Court at Oshakati on
13th July 2001, failing which, she may be arrested and her
bail may be forfeited’;
3. 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;
4. The
second respondent is ordered to pay the costs of the application.”
As
pointed out by appellants’ counsel, the Court a quo made the
following findings of fact relevant to the merits.
1. “the
investigating officer withheld vital information from court, when
making his affidavits which were placed before the High Court and
when testifying in the Magistrate’s Court;”
2. “the
delay complained of by the applicant was the responsibility of the
State;”
3. “the
arrest of the applicant was in the nature of a pre-emptive strike;”
“the
delay was presumptively prejudicial;
5. “the
applicant and her lawyers had been misled by the statements made by
the public prosecutors;”
6. “the
applicant’s trial did not take place within a reasonable time.”
The
applicant sought leave to appeal, was granted leave to appeal.
The
grounds of appeal are set out in the notice of appeal as follows:
“1. The
learned Judges erred in not releasing the Appellant in terms of
Article 12(1)(b) of the Namibian Constitution, in the sense that the
Appellant is to be released from further prosecution.
2. The
learned Judges erred in that they found that they still have a
discretion once a factual finding had been made that the Appellant
did not have a trial within a reasonable time, alternatively did
not exercise their discretion judicially, alternatively was
influenced by wrong principle, in the further alternative misdirected
themselves on the facts, in the further alternative reached a
decision which cannot reasonably have been made by a Court properly
directing itself, and more particularly on the following basis:
2.1 despite
the fact that the learned Judges found:
(a) that
Mulimina withheld vital information when making his affidavit which
was placed before the High Court and when testifying in the
Magistrate’s Court;
(b) that
the delay complained of by the Appellant was the responsibility of
the State;
(c) that
the arrest of the Appellant was in the nature of a pre-emptive
strike;
(d) that
the delay was presumptively prejudicial;
(e) that
the Appellant and her lawyers had been misled by statements made by
the public prosecutors; and
(f) that
the Appellant’s trial did not take place within a reasonable time,
the Court still failed to release the Appellant from further
prosecution;
2.2 the
learned Judges erred in finding that the Appellant did not prove that
she would suffer irreparable trial related prejudice, particularly in
the light of the finding of the learned Judges that the delay in
finalising the trial was presumptively prejudicial to the Appellant.
Such presumptive prejudice also relates to trial related prejudice
and accordingly the evidential burden shifted to the State to prove
in such circumstance, that the Appellant would not suffer trial
related prejudice;
2.3 the
learned Judges erred in not finding that the delay caused by
the State was a deliberate stratagem;
2.4 the
learned Judges failed to take into consideration that in as far as
the Appellant was hampered in proving trial related prejudice, it was
not her fault at all, but the fault of the State in not providing
detailed charges against the Appellant in order to enable the
Appellant to prove trial related prejudice;
2.5 the
learned Judges erred in finding that the word “release” as
used in Article 12(1)(b) of the Constitution can have a different
application and meaning, depending on the circumstances;
2.6 the
learned Judges erred in finding that once it had been determined that
the Appellant’s trial had not taken place within a reasonable time,
then and in that circumstances, the Court does have a discretion
whether or not to release the Appellant, particularly in the light of
the wording of Article 12(1)(b) which provides that the Appellant
“shall be released”;
2.7 in
as far as the learned Judges had a discretion once they found that
the Appellant’s trial had not taken place within a reasonable time,
the learned Judges erred in not releasing the Appellant from
prosecution, particularly in circumstances where:
(a) as
a result of the pre-trial irregularities, the misleading of the
Courts by the State and/or the Prosecutors acting on behalf of the
Second Respondent, it was an appropriate case to release the
Appellant without being necessary to determine whether or not the
Appellant will suffer trial related prejudice;
(b) as
a result of the combined factor that the Appellant did not have a
fair trial in the circumstances (and therefore can never have a fair
trial) as well as the fact that the trial had not taken place within
a reasonable time;
2.8 the
learned Judges erred in not finding that on a proper interpretation
of Article 12(1)(b) of the Constitution, that article does not
require or demand trial related prejudice before an accused can be
released from further prosecution;
2.9 the
learned Judges erred in not holding that Article 12(1)(b) envisaged
two scenarios where an accused shall be released from
prosecution, being:
(a) where
the accused (Appellant) did not have a fair trial and cannot have a
fair trial as a result of the pre-trial irregularities mentioned in
the Appellant’s application, (i.e. even in circumstances where an
“unfair” trial can take place within a reasonable time);
where
the trial had not taken place within a reasonable time; both the
aforementioned scenarios having been applicable to the Appellant’s
case.”
SECTION
B:
THE
BACKGROUND FACTS
The
relevant background facts have been set out by Mr Heathcote in his
heads of argument. These facts, with very few exceptions, appear to
be accepted by respondents in substance. Consequently it is
convenient to repeat these facts for the purpose of this appeal, as
renumbered by me and headings inserted where appropriate:
“1. The
Appellant was arrested on 27 June 2000. She first appeared in court
on 29 June 2000. The matter was then remanded until 30 June 2000 for
a bail application.
2. On
30 June 2000, the prosecutor informed the court that the State was
unable to proceed with the bail application as the docket is
voluniane. It was then agreed that the matter should be
postponed to 4 July 2000 for the bail application.
3. On
4 July 2000 the prosecutor informed the court that a bail application
was opposed on the basis that, inter alia, the investigation
would take a long time. Thereupon, the Appellant’s legal
representative accepted that the case had to be remanded for a bail
application to be held.
4. On
9 August 2000 the bail application was called. The State was
represented by public prosecutor Imalwa (hereinafter “Imalwa”)
and the Appellant was represented by Advocate Metcalfe.
The
court was informed that the State would not have an objection
against bail, and that it was agreed (or so it was thought) that the
Appellant had to pay an amount of N$100,000.00, and had to deliver a
Toyota Corolla motor vehicle to the police as security.
In
addition, the bail conditions were determined as:
6.1 the
Appellant had to report twice per day to the Oshakati police station
between 07h00 and 08h00 and between 19h00 and 20h00;
6.2 the
Appellant had to surrender her passport to the Clerk of the Oshakati
Court;
6.3 the
Appellant was not permitted to leave the district of Oshakati without
permission of the investigating officer or the station commander; and
6.4 the
Appellant was not to visit the premises of the organisation of CD or
interfere with the witnesses in any manner.
During
these bail proceedings Imalwa, the public prosecutor, on that
occasion, stated the following:
‘Regarding
problem of transport problems accused might incur, State objects to
that, investigations incomplete, complication investigations, money
involved so far is in excess of one million N$ if convicted, sentence
will be high.’
Metcalfe,
in support of his submissions stated inter alia
‘The
investigations to be long’.
Metcalfe
further raised the issue that the matter was one of negotiation. To
this Imalwa later responded:
‘Communications
between the attorney (defence) and of the board is irrelevant to our
criminal case. That is their civil trial.’
Thereafter,
bail of N$150,000.00 was granted and on conditions as set out above.
The matter was then postponed for further investigations.
Thereafter,
the matter was postponed on various occasions. Those dates, and the
reasons given for the postponement can be summarised as follows:
14/8/00 ‘Investigation
incomplete’
12/9/00 ‘Docket
not brought, do not know how far investigations are. Adj. To
16/10/2000 for fi’
16/10/00 ‘May
the matter be postponed till 23/11/00 for fi’
23/11/00 According
to the court order the case was postponed to 29/4/00 for further
investigation. This is most probably an incorrect date. It should
read 29//11/00.
29/11/00 The
case was adjourned to 7/12/00 for an application to be made on behalf
of the appellant.
7/12/00 The
prosecutor stated ‘The investigation is not completed’
As
well as: ‘… we waiting for PG Decision whether to withdraw or
continue with the case’
When
Metcalfe stated that the matter is a civil one other (rather) than a
criminal one, the prosecutor stated: ‘Court will decide’
7/12/00 The
case was postponed to 19/12/00 for further investigations.
19/12/00 The
prosecutor requested the matter to be adjourned to 01/2/01 for
further investigation.
1/2/01 The
prosecutor stated: ‘The case is still under investigation’ and
‘May the matter be adj until 9/4/01 for fi’”
The
first objection to postponements requested by the State
“12. On
9 April 2001, when the State indicated again that the investigations
were incomplete the appellant’s representative objected.
Thereafter, the appellant testified, inter alia, that:
12.1 she
was a Zambian citizen and was arrested on 27 June 2000;
12.2 she
came across documents which suggested that the finance officer might
have been committing theft and fraud. She report this to the board
during March 2000;
12.3 on
27 June 2000 however, she was arrested out of the blue;
12.4 she
did not see her children since November 2000 (who are twins, 6 years
of age);
12.5 already
during the internal investigation:
‘Everything
was there and even documentary evidence was there.’
12.6 the
complainant in this matter has informed the prosecutor that:
‘It
is the company’s wish to withdraw any or criminal charges against
the said Margaret Malama-Kean with immediate effect and does not
desire any further prosecution against the said Margaret Malama-Kean’
12.7 the
State did not provide the court with any evidence to support the
prosecutor’s statement from the bar that: ‘The investigations
are incomplete.’
13. During
the cross-examination of the appellant the prosecutor put the
following to the appellant: ‘So it was adj only for 8 times for fi
not for 10 times.’
14. The
appellant’s application/objection was not upheld and the court made
the following order: ‘Case adj till 24/7/01 for fi finally’.”
The
appellant’s first approach to the High Court for relief
“15. The
appellant then lodged an appeal to the High Court of Namibia against
the order of the learned magistrate made on 9 April 2001. However,
the State lodged an interlocutory application, requesting the matter
to be referred to the Magistrate’s Court.” The High Court of
Namibia granted the application by the State and referred the matter
to, the Magistrate’s Court to reconsider after hearing the evidence
of the investigating officer.”
The
proceedings in the Magistrate’s Court after remittal by the High
Court:
“16 During
the proceedings which commenced on 26 June 2001 Mulimina (the
investigating officer) was called as the State’s witness. With
reference to his evidence, the following is respectfully pointed out:
16.1 the
charge sheet states that the accused is charged with the offence of
fraud in that upon (or about) the … day of …. 19 … and … in
the said district/divisions … the said accused did wrongfully and
unlawfully ‘APA’.
No
particulars were provided;”
Mulimina’s
affidavit:
“16.2 the
first time that the State ever endeavoured to provide any ‘details’
against the applicant was when Mulimina stated in his affidavit
(exhibit L) the following:
‘There
is a prima facie case in this matter against the Applicant (referring
to the appellant) viz:
a
company vehicle was sold by money was not deposited in the company’s
account;
most
of the cheques were written cash and not in the name of the
creditors;
cheques
indicated cancelled were cashed;
staff
members were receiving salaries through the bank from company
account but still cheques were written cash as salaries of staff
members;
false
claims were submitted to assurance company that housebreaking took
place at the company’s office and computer was stolen but no
breaking took place;
amount
written on the cheque differs with the amount written on counterfoil
of those cheques’.”
Mulimina’s
viva voce testimony:
“17. In
respect of the respective sub-paragraphs of paragraph 11 (quoted
above) and in general, the investigating officer (Mulimina) testified
as follows:
the
accused was arrested on 27 June 2000;
he
did not investigate the matter for nine months as alleged. He
said:
‘The
lawyer of the company and the lawyer of accused, they requested me to
put the investigation on hold as they were busy trying to settle the
matter outside court.’
the
wording here is different than in exhibit L where he stated in his
affidavit that:
‘During
July 2000 the lawyer of the Applicant by the name of Mr Thambapilai
and the lawyer of the company Mr Greyling indicated to me to
halt the investigation because the Applicant in this matter offered
to pay N$250,000.00 as a settlement of the loss the company
incurred.’
17.4 he
handed in a letter dated 13 November 2000, which was in the State’s
possession. The prosecutor agreed that the defence was not in
possession of such a copy;
the
letter (exhibit J) is dated 13 November 2000. This letter was
addressed to the Deputy Prosecutor-General and marked for the
attention of Imalwa;
in
that letter it is clearly stated that:
‘Our
instructions are further that the criminal investigation of the
matter were put on hold for this purpose.’
(instructions
which were received from Greyling’s client (CD Namibia).)
nevertheless,
this letter was only handed in to court during
the
proceedings of 26 June 2001;
17.8 Mulimina
further testified that he stopped the investigation, and that the
approach to halt the investigation came within a month after the
appellant was arrested;
17.9 he
further testified that:
‘Since
from July up to November without doing any investigation. We started
in December 2000.’
17.10 he
‘only investigated this case as from December to March 2001. It
was only for four months’;
17.11 his
investigation was difficult because the office of CD in Katima Mulilo
has closed since December 1998, and the office of CD Rundu since
December 1997;
17.12 if
there was no interference with the investigation after the arrest of
the appellant, the investigation would have already completed;
17.13 after
he, in essence, reiterated the allegations made in paragraph 11 of
his affidavit (quoted above) he stated that:
‘The
money involved in this case is 2.8 million. This included, does not
include the money for the computer and the money for the car.’
17.14 during
cross-examination he testified that the investigation was completed
on 12 June 2001;
17.15 during
the bail application and on 9 April 2001 he informed the prosecutor
(about the status of the investigation);
17.16 the
Deputy Prosecutor-General (Imalwa) instructed him to continue with
the investigation;
he
further testified that:
‘A: During
the bail application I was here and on the 9th April 2001
and I was outside.
Q: During
this period you did discuss this matter with Mrs Imalwa.
A: Yes,
but on the 9th I discussed it with Haindombo.
Q: It
is important factor for the Court to know that the investigations
were halted during June.
A: Yes.
Q: Whom
did you inform to inform the court.
A: I
spoke to Imalwa.’
17.18 he
halted the investigation during July 2000;
17.19 he
had bank statements of the company in his possession. It was in the
docket;
17.20 he
had no statement in his possession that accused 1 cancelled the
cheque but thereafter cashed the cheque which she cancelled;
17.21 although
first reluctant, he had to concede that he had no statement
confirming that a housebreaking took place.
17.22 the
internal investigation of the company was completed during 2000
already;
17.23 he
further testified in cross-examination that the State Prosecutor had
told him to stop the investigation.
17.24 he
had a statement, implicating the appellant in relation to -an
allegation made in paragraph 11.1 of his affidavit;
17.25 he
trusted the appellant that she would “never” abscond;
17.26 in
doing his investigation, he is not allowed to phone outside the
country;
17.27 he
further testified that the Public Prosecutor knew that he had halted
the investigation during June 2000.
17.28 on
the second day of his cross-examination, he already started to
downscale the alleged involvement of accused 1 in the 2.8 million.
He stated that:
‘According
to the internal investigations report this is the amount the company
has lost.’
17.29 he
further agreed that he was not saying that accused 1 committed fraud
or theft in an amount of 2.8 million;
17.30 accused
2 in fact admitted fraud during the internal investigation;
17.31 he
learned that accused 2 admitted fraud on 27 June 2000;
17.32 he
decided not to arrest accused 2 because of the settlement
negotiation, but he did not release accused 1 (who was then still in
jail) ‘because there was still some cheques which were not
accounted for’;
17.33 he
then conceded that he only had a prima facie case in respect
of paragraph 11.1 and 11.5 (as indicated in his affidavit); The
allegation in 11.1 was that “a company vehicle was sold but the
money was not deposited in the company’s account;” the allegation
in 11.5 was that a false claim was submitted to the assurance company
that housebreaking took place at the company’s office and computer
was stolen but no housebreaking took place.
17.34 the
record omits the word ‘only’ but it submitted, that if
regard is had to his answers in re-examination, it is clearly what he
stated;
17.35 when
the affidavit of Anna Herman was read to him he agreed that it did
not indicate that accused 1 was guilty of theft or fraud of the
amount in N$22,000.00;
17.36 he
further agreed, that as a result of the delay finalising the
investigation it would be very difficult for accused 1 to use her
former employees as witnesses because the branches of CD Namibia
closed down;
17.37 he
agreed that the appellant will suffer trial related prejudice;
17.38 he
agreed, that if only the bail condition of N$150,000.00 remains
applicable, the appellant will also stand her trial;
17.39 after
the hearing of 9 April 2001, he asked the prosecutor why he was not
called, but he was not given any reason;
17.40 thereafter,
the defence endeavoured to hand in a statement of Anna Herman. That
is the statement that was in possession of the State, and on which
the investigation officer relied for the allegation that he had a
prima facie case against the appellant in relation to the
allegation made in paragraph 11.1 of his affidavit. The State
objected, and the court refused to accept to receive the statement,
holding inter alia that:
‘The
court will not allow the statement to be handed in as the court feels
that the State might be prejudiced.’
17.41 the
defence endeavoured to hand in an affidavit of Hennie Barnard, in
response to the affidavit (then already received by court as exhibit
I). The State objected and the court upheld the objection stating
inter alia that ‘the State might be prejudiced’;
17.42 during
re-examination, inspector Mulimina agreed that there was only a prima
facie case regarding the Mazda 4x4 and that the amount of 2.8
million, did not include the amount of N$22,000.00 in respect of the
vehicle;
17.43 he
continued to testify that accused 2 was involved in relation to 1.6
million dollars, but for the remainder of 1.2, nobody is
responsible.”
The
testimony of Greyling, attorney for complainant C.D. Namibia
“18. Thereafter,
the State called Mr Greyling who testified that:
he
was approached by Mr Thambapilai (the appellant’s legal
representative) to settle the issue between the appellant and Mr
Greyling’s client;
he
sought the permission of the investigating officer to engage
settlement negotiations;
he
confirmed that, accused 2 was the accounting officer of CD Namibia,
and being the accounting officer, she would be the principle
officer and the person under whose control finances of the company
would be;
in
fact, CD Namibia took particular care to have accused 2 appointed
as a finance officer in order to control all the financial issues
and money of CD Namibia;
he
did not instruct Mulimina to halt the investigation;
he
also did not tell Mulimina to stop the investigation but he
expected that the investigation will not proceed.”
CD
Namibia board held an emergency meeting before the appellant was
arrested.”
Mr
Botes on behalf of the respondents, however pinpointed certain other
relevant facts which must be considered. A useful summary of the
most relevant points are contained in paragraphs 23-46.
The
correctness of the said summary was not contested on appeal. The
facts not properly covered or on which respondents’ counsel wished
to place additional emphasis are those contained in the following
paragraphs of the summary which I have renumbered for the purposes
hereof:
“(i) On
9 August 2000 the bail application was heard. The State was
represented by a Public Prosecutor Imalwa and the applicant was
represented by Mr. Metcalfe instructed by Thambapilai.
After
some discussions took place and/or submissions were made the Court
granted bail to the applicant on certain conditions. All the
conditions were concurred with and/or consented to by Mr. Metcalfe.
During
this appearance Mr. Metcalfe indicated that certain negotiations
were ongoing between the accussed’s legal representatives and
Greyling Associates the legal representatives of CD Namibia.
Thereafter,
the matter was postponed on various occasions. The matter in fact
from the 14th of August 2000 up and until the 9th
of April 2001 was postponed for approximately nine times for further
investigation. The dates and the reasons for the postponements are
evident from the relevant portions of the record of proceedings.
It
is evident from the relevant portions of the record that the
applicant at all relevant times was legally represented during the
said postponements and that most of the dates of the postponements
in fact were agreed upon.
On
the 7th of December 2000 Mr. Metcalfe appeared on behalf
of the applicant on the instructions of Mr. Thambapilai. At this
appearance the Court was informed that the complainant apparently
wants to withdraw the case against applicant and that the matter be
referred to the Prosecutor-General for his decision. Mr.
Metcalfe also made application for the reduction of the bail
conditions. (My emphasis added.)
On
the 1st of February 2001 Mr. Barnard, the present legal
practitioner for record of the applicant, officially started to
represent the applicant. On that date the matter was postponed
until the 9th of April 2001 for further investigation.
Up
and until the 9th of April 2001. None of the legal
representatives nor complainant complained or even made any remark
as to why the investigation was not completed. It is submitted that
this is indicative of the fact that, as Mr. Greyling under oath
testified, Mr. Thambapilai was fully aware of the status of the
investigation and the settlement negotiations entered into between
the parties.
On
the 9th of April 2001 when the matter again was to be
postponed Mr. Barnard, appearing on behalf of the applicant,
objected to a further postponement. The applicant was called to
testify:
‘Mr.
Metcalfe do appear for me. I also informed him of the distress I am
facing. He suggested to me that if I couldn’t able to wait for
trial in three years I could reach an outside court agreed which
involved the money. I was very unhappy about with this but I had not
alternative. It is my application so that the Court give me chance
to visit my children in England. And if it allow postponement.’
Mr.
Barnard, in his address to Court after the evidence of the applicant
had been led, made the following submissions:
‘We
were approaching the Court to give the State chance to investigate
and not to deprive us from being with a family. We are here for
fairness. That means if the Court release accused in terms of
Article 12(b) of the Constitution accused can be recharged. I also
refer the Court to the Article 5 of the Constitution.’ We are
asking the Court to release the accused which will mean that she will
be given her passport and she is free to go to her country which the
case is being investigated.’
(x) From
the aforesaid it is evident that the main gist of the applicant’s
application was to be released at least from some of her bail
conditions so that she can be able to visit her children in England.
It never was testified or submitted in argument that the relief
sought through the application was a permanent stay of prosecution.”
It
is important also to note the following further developments:
The
adjournment granted on 9/04/2001 to 24/07/2001 was stated to be a
“final” adjournment.
Before
the matter could be dealt on 24/7/2001, the appeal by the applicant
was launched on 12th April 2001. Before it could be
heard, on 15/6/2001 the State launched an interlocutory application
for the remittal of the matter to the Magistrate’s Court to allow
the investigating officer to testify.
As
a consequence the adjournment by the Magistrate to 24/7/2001 was set
aside and the matter referred back to the Magistrate for rehearing
not later than 26th June 2001.
The
rehearing took place on 26th June and continued until
28th June and then adjourned until 5/7/2001 when the
magistrate gave judgment. Accused no. 1 was represented at this
hearing by Advocate Heathcote and the State by Advocate Imalwa.
On
5/7/2001, the last day of the remittal hearing, Imalwa informed the
Court that the Prosecutor-General’s decision has now come to hand
and that the Prosecutor-General had decided that the applicant shall
be arraigned, as accused no. 1, together with Shipika, as accused
no. 2, to stand trial in the Regional Court in Oshakati, on count 1,
theft – general deficiency (2, 894, 740.10) and count 2 –
Contravening Section 2(b) of Ordinance 2 of 1928, alternatively
contravening Section 2(c) of Ordinance 2 of 1928 – Corruption.
The
State then applied for the case to be formally transferred to the
Regional Court. The State also applied for the matter to be
postponed to 9th July because accused no. 2 could not be
present, according to Advocate Metcalfe, who at the time was her
legal representative and apparently no longer counsel for accused no.
1, the applicant.
Applicant
Malama-Kean objected to the postponement, as well as to the transfer
to the Regional Court. Her lawyers were not present and she was
unable to give any ground for the objection for the transfer to
Regional Court. She explained that her absent lawyer, i.e. Mr.
Barnard, told her to object.
The
Court then ruled that “accused 1 and the record are transferred to
the Regional Court, Oshakati on 13/7/2001 for fixing a trial date
with counsel for the accused”.
On
9/7/2001 the case of accused no. 2, now represented by Advocate
Metcalfe, was also transferred to the Regional Court, with the
consent of Advocate Metcalfe, for the fixing of the trial date on
13/7/2001.
It
is clear from the above that at this stage the State as well as the
Court also had to consider the interests of accused no. 2 because
both accused were entitled to a fair trial.
SECTION
C:
THE
INTERPRETATION AND APPLICATION OF ARTICLE 12 (1)(b) OF THE NAMIBIAN
CONSTITUTION READ WITH ARTICLES 5 AND 25
In
this regard this Court had the benefit not only of the interesting
and valuable arguments of counsel in this case, being Mr Heathcote
for appellant and Mr Botes and January for respondents, but also
those of Mr du Toit for appellant, assisted by Mr Grobler and Mr
Small for respondent in the appeal of Myburgh v the State,
where the same issues were canvassed.1
The
judgment in Myburgh in regard to the interpretation and
application of art. 12(1)(b) of the Namibian Constitution read with
art. 5 and 25 as contained in Section B of that judgment is
applicable to this judgment, mutatis mutandis.
The
first leg of the enquiry is the meaning and application of the words
in 12(1)(b) “a trial referred to in sub-article (a) hereof shall
take place within a reasonable time –“
Before
the present appeal and that in Myburgh v The State, the only
cases where this issue was dealt with was that in State v
Strowitzki & An., and State v Heidenreich, both
decisions of the High Court of Namibia. The aforesaid decisions of
the High Court did not differ in any material respect on this issue.
I affirm for the purposes hereof what I said in State v Myburgh
in this regard, but for the sake of brevity I will only quote the
conclusion arrived at in that decision:
“The
factors to be considered in deciding when ‘long is too long’ was
summed up in the Canadian case of R v Morin and accepted as
useful guidelines in Strowitzki. They are:
‘1. Length
of delay;
waiver
of time periods;
the
reasons for the delay
inherent
time requirements of the case;
actions
by the accused;
actions
of the Crown;
limits
on institutional resources;
other
reasons for the delay; and
prejudice
to the accused.
There
is little or no discernable difference between Strowitzki and
the Namibian cases that followed in regard to the interpretation of
the terms ‘within a reasonable time’.
In
Heidenreich it was said:
‘Reasonable
is of course a relative term and what constitutes a reasonable time
for the purposes of Art. 12(1)(b) must be determined according to the
facts of each individual case. The Courts must endeavour to balance
the fundamental right of an accused to be tried within a reasonable
time against the public interest in the attainment of justice in the
context of the prevailing economic, social and cultural conditions to
be found in Namibia… What is required at the end of the day is a
value judgment. …’.”
In
the Myburgh judgment I also dealt briefly with the judgment of
the Court a quo in this appeal in regard to the so-called
second leg of the enquiry, i.e. the interpretation of the words
“shall be released”.
The
length of this judgment as well as that in Myburgh, covering
essentially the same field induced me not to repeat the whole Myburgh
judgment on this issue, but merely affirm it for the purpose hereof
and repeat only the conclusion arrived at in that decision. The
conclusion was:
“After
carefully considering the decisions in S v Strowitzki,
Heidenreich, Van As and Malama-Kean, I have
reached the conclusion that all of them were wrongly decided in part
in regard to the correct interpretation of the words ‘shall be
released’ in art. 12(1)(b).
It
seems to me that counsel for appellant who argued the Malama-Kean
appeal before us, was correct in his contention that ‘released’
in art. 12(1)(b) read with art. 12(1)(d) means released from the
trial as envisaged in 12(1)(a). The Court a quo in
Malama-Kean came to its conclusion on the three possible forms
of the order, without first concluding that the words ‘shall be
released’ were intended in the first place to mean – released
from the trial as envisaged in 12(1)(a). Mr. Heathcote’s
contention also makes sense because such an interpretation will also
extend the remedy contemplated by art. 12(1)(b) to accused persons
who are not in detention, who would not have had a remedy
under art. 12(1)(b) if the term ‘released’ in 12(1)(b) is
restricted to release from detention.
Notwithstanding
various pointers to the contrary in my analysis supra, this
construction appears to me to be the most logical solution to the
dilemma caused by the vague language of art. 12(1)(b) and appears to
be the interpretation which best reflects the probable intention of
the authors of the Namibian Constitution. It is also in line with a
broad, liberal and purposive approach.
The
decisive consideration for the aforesaid construction however, is
that the principle that those criminal courts, which are “competent”
courts with the necessary jurisdiction, should have in their armoury
of sanctions, the power and the responsibility in an appropriate case
of unreasonable delay, to order a permanent stay of prosecution as at
least one of its discretionary powers. This is in accordance with
principles and procedures in most of the advanced criminal justice
systems in democratic countries. It must be assumed that the framers
of the Namibian Constitution also had this objective in mind.
The
question however still remains what is the full significance of an
order – ‘shall be released from the trial’.
It
is clear that the remedy provided in art. 12(1)(b) – ‘shall be
released’, is couched in mandatory and peremptory terms.
Nevertheless it does not seem to me that only one form of release
from the trial would meet the peremptory requirement.
The
following forms of release from the trial, will in my view all be
legitimate forms meeting the peremptory requirement:
(i) A
release from the trial prior to a plea on the merits, which does not
have the effect of a permanent stay of the prosecution and is broadly
tantamount to a withdrawal of the charges by the State before the
accused had pleaded.
This
form of release from the trial will encompass:
Unconditional
release from detention if the accused is still in detention when the
order is made for his/her release;
Release
from the conditions of bail if the accused had already been released
on bail prior to making the order;
Release
from any obligation to stand trial on a specified charge on a
specified date and time if the accused had previously been summoned
or warned to stand trial on a specified, charge, date and time.
(ii) An
acquittal after plea on the merits;
(iii) A
permanent stay of prosecution, either before or subsequent to a plea
on the merits.
Which
form the order of ‘release from the trial’ will take, will depend
not only on the degree of prejudice caused by the failure of the
trial to take place within a reasonable time, but also by the
jurisdiction of the Court considering the issue and making the order.
So
e.g. as I have indicated in the discussion supra, a
magistrate’s court would not be able, as the law stands at the
moment, to order a permanent stay of prosecution before plea and
remedy no. (iii) supra would thus fall outside the options
available before the magistrate’s court.
The
High Court on the other hand, will be competent to grant all the
remedies enumerated under (i), (ii) and (iii) and as far as (iii) is
concerned, it will act in terms of its powers as a ‘competent’
court under art. 25(2) read with article 5 and 12(1)(a) and 12(1)(b)
of the Constitution.
It
is necessary to reiterate that the remedy of a permanent stay of
prosecution will only be granted if the applicant has proved that the
trial has not taken place within a reasonable time and that there is
irreparable trial prejudice as a result or other exceptional
circumstances justifying such a remedy.
Courts
making an order under 12(1)(b) must not merely state that the accused
‘shall be released’, but use one of the forms of order enumerated
in (i), (ii) or (iii), supra, so that the ambit of the order will be
clearly understood by all concerned.”
SECTION
D:
COMMENT
ON THE FINDINGS OF FACT AND REASONS OF THE COURT A QUO
It
is clear from the facts which are herein set out and not in dispute,
that the Court a quo was at least justified in finding:
The
arrest of the applicant/appellant was in the nature of a pre-emptive
strike.The
investigating officer, Mulimina withheld vital information from
Court, when making his affidavit and when he testified in the
remitted proceedings before the Magistrates Court.
The
vital information which was withheld was that contained in his
investigation diary which contradicts his affidavit and viva voce
evidence in chief in so far as he had contended in the aforesaid
testimony that:
“I
stopped the investigation as it was put on hold” and “I only
investigated this case as from December to March 2001.” The
investigation diary showed, as the Court correctly found, that
“Mulimina took at least twenty statements between the end of July
and November 2000, and also obtained a variety of other documents.”
The
Court also stated: “What happened seems to me to be clear.
Mulimina pursued the investigation with some vigour but a month or so
after learning that settlement proceedings were in progress, he
lost interest and for several months did nothing”. The Court
further found: “The delay complained of is the responsibility of
the State.”
It
seems that the Court in the last preceding sentence said and intended
to say, that the “several months” that Mulimina “did nothing”
was the responsibility of the State and not that the whole of the
delay in the case to bring the applicant to trial, was caused by the
State.
The
statement by the Court that the accused did nothing for several
months is however inconsistent with the previous statement by the
Court that Mulimina, according to he investigation diary “took at
least 20 statements between the end of July and November 2000 and
also obtained a variety of documents.”
Mulimina
changed his stance somewhat when he later explained in his affidavit
attached to that of Olivia Imalwa in the review proceedings launched
in the Court a quo on 9th August 2001, 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.
There
is some support in the investigation diary itself that the statements
obtained during this period were “easily obtainable.”
Nevertheless, a considerable number of statements were obtained.
Mulimina’s aforesaid statements that he “stopped the
investigation as it was put on hold,” are consequently incorrect
and constitutes a misrepresentation to the Magistrate’s Court. It
may also have constituted a misrepresentation to the appellant and
her legal representatives or to some of them and it is possible that
they were misled by these statements, but that does not mean that the
applicant suffered any trial related prejudice as a result.
It
is correct to say that Mulimina lost some interest when he was told
of the settlement proceedings and may from that point onwards, have
pursued the investigation with less vigour, but that is as far as one
can take it.
The
Court therefore erred in saying that when Mulimina heard of the
settlement proceedings he not only lost interest, ‘but for
several months did nothing.” (My emphasis added.)
Consequently
the finding that “the delay complained of is the responsibility of
the State” on which the applicants legal representatives have so
strongly relied, should carry little weight, because the alleged
delay of ‘doing nothing for several months’ was factually
incorrect and misconceived.
Alternatively,
in so far as the taking of “at least twenty statements between the
end of July and November 2000 and the obtaining of a variety of
documents” is consistent with not pursuing the investigation with
the required vigour, very little weight, if any, should have been
attached by the Court a quo to this neglect.
The
Court a quo regarded the reason for Mulimina’s false
evidence as a “stratagem of laying the blame for the delay in
completing the investigation at the feet of the applicant” and that
this “stratagem” was “without a proper foundation. This
finding must however, be seen in context to determine its importance
and weight.
It
must be remembered e.g. that it is an undisputed fact that there were
settlement negotiations almost from the beginning of the period
following on the applicant’s arrest on 27/6/2000 right up to
notification of the settlement and of the complainant’s withdrawal
statement on 29/11/2000.
It
is clear from the testimony of Greyling, attorney for the
complainant, that not only was it his point of view, that the
continuation of the investigation would be futile, in the light of
the settlement negotiations, but he communicated this view to
Inspector Mulimina.
Although
he did not order Mulimina to put the investigation on hold, he
requested Mulimina to do so pending a possible settlement. It is of
course correct to say that even if Greyling told Mulimina to put the
application on hold, that would have been an instruction with no
legality and Mulimina would not have been bound to comply with it.
But it is understandable, even if it was merely the point of view of
Greyling which was conveyed to Mulimina, if Mulimina was influenced
by the point of view of Greyling to pursue the investigation with
less vigour and to proceed at a slower pace.
Any
settlement between complainant and applicant and any withdrawal of
the charges, would certainly have been an important development,
which the Prosecutor-General would have had to consider, in
conjunction with all the other available facts and circumstances, to
decide whether to continue with the prosecution, or withdraw the
charges.
This
notwithstanding, the Prosecutor-General would need a proper and
completed investigation to enable him/her to exercise his discretion
properly, whether or not the complainant has settled with the suspect
and wishes to withdraw the charges.
The
Prosecutor-General will also have to guard against allowing or
putting his stamp of approval on “settlements” that may amount to
the crime of “compounding a crime”. This crime consists in
unlawfully and intentionally agreeing for reward not to prosecute a
crime punishable other than by a fine only.”1
The
eventual agreement between the applicant/appellant and the
complainant in this case even provided that the complainant (CD
Namibia) in lieu of a payment of N$250,000 will not only withdraw the
criminal charges on or before 15/11/2000, and “will not bring any
other charges by way of civil or criminal action or otherwise against
the second party (Malama-Kean), “but will also not “facilitate
support or give information, in the form of any evidence or otherwise
to any other individual, party or organization and/or organisations
to bring any charges or civil claims against the party of the second
part (Malama-Kean), upon payment of the sum of N$250,000.”
Clearly, the Prosecutor-General may not or should not be party to
such a scheme, which if not illegal, may be on the brink of
illegality.
The
trial Court emphasized the denial of the applicant’s legal adviser
Thambapilai in his affidavit that he had not been aware that the
investigation had been halted and if he had become aware thereof, he
would have strenuously objected to any postponement purporting to be
for further investigation by the State. The affidavit of Richard
Metcalfe, the second legal representative of applicant, is to the
same effect. Their assertions in an affidavit was obviously not
tested in cross-examination and the Court a quo should have
kept this in mind when considering the veracity of such assertions in
the light of all the other evidence and the circumstances.
It
should be noted here that Thambapilai in his letter dated 31/7/2000,
bemoaned the hardships of his client in prison and solicited the
assistance of the complainant in the then pending bail application.
In
the letter of reply dated 31/7/2000, Greyling pointed out that
Malama-Kean was the Chief Executive officer of the complainant and as
such may “find herself in a total different circumstances than any
of the other employees,” clearly insinuating that as such she had
some explaining to do.
Greyling
further pointed out:
“Our
client is in the process of commencing with civil action against your
client for the amounts which our client believes your client is
liable to them. As your client is a ‘peregrinus’ to our courts
seen with the well known fact that your client was about to leave
Namibia, our client is also contemplating procedures to fix
jurisdiction in regard to your client and further to obtain security
for any amount which may be due and payable by your client should the
appropriate Court rule that she is liable for any amount.”
However,
it is quite clear from what Metcalfe said at an early stage of the
proceedings in the Magistrate’s Court, i.e. on the 9th
August 2000 that “this is a matter for negotiation” together with
the letters from Thambapilai and the letter in reply from Greyling
and Associates, exhibits “D” and “E” respectively, to the
effect that negotiations were taking place in which his client was
vitally interested, that appellant and her legal representatives not
only knew of these negotiations, but relied on its outcome.
When
applicant testified in the magistrates Court on 9.4.2001 during the
hearing where the State asked for an adjournment and Mr Barnard on
behalf of applicant opposed, the applicant inter alia testified
in regard to Mr Metcalfe’s advice to her:
“He
suggested to me that if I couldn’t able to wait for trial in 3
years time I could reach an outside Court agreed (agreement) which
involved the money. I was very unhappy about this, but I had no
alternative.”
Applicant
said in her review application, indicating her knowledge of the
negotiations:
“During
the same appearance (9 August 2000) my legal practitioner, Mr
Metcalfe, informed the Court that there were certain negotiations
being conducted between the complainant in this matter (CD Namibia, a
non-governmental organization, who was my former employer and
myself). This information was made available to the Court because it
was relevant insofar as my bail conditions were concerned.”
Metcalfe
in his address to the Court on 7/12/2000 inter alia made the
following submissions:
“The
complainant want to withdraw the case against her.” “This case
is a civil matter rather than a criminal matter…” (My
emphasis added)
It
must be remembered throughout that Thambapilai was the attorney for
appellant and the instructing attorney for Advocate Heathcote,
whenever the latter appeared for the applicant up to the time when
Mr. Barnard became the instructing attorney on 9th April
2001. Thereafter Barnard also became the instructing attorney for
Metcalfe on those occasions when Metcalfe appeared for applicant.
During
the period when Thambapilai was the attorney of applicant, one must
assume that he would have kept applicant informed of developments as
to the settlement negotiations and its implications for the criminal
case and its investigation and that Metcalfe would also have been
informed.
Greyling
who testified in the remitted Magistrate’s Court proceedings and
whose evidence was relied on by the Court as shown above, also
testified that “the legal representative of the accused was aware
of all these,” referring to the settlement negotiations and his
view that any investigation by the police would have been a waste of
time if a settlement is reached.
Greyling
also testified:
“The
letter was written at this stage we were on use of finalizing the
settlement agreement. A draft copy of an agreement was faxed to my
office by Mr Thambapilai and the purpose of this document was to
request and persuade the prosecution not to proceed with the criminal
charges.”
He
further testified under cross-examination by Heathcote that he had
informed Thambapilai, the legal representative of the accused, what
he had told Mulimina. He added that during that period he spoke to
Thambapilai “at least four times a day.” When pressed again by
Heathcote “you did not tell Mr Thambapilai that you instructed Mr
Mulimina to halt the investigation” he replied: “I did not tell
him. What I did is that I requested Mulimina pending a possible
settlement.” (My emphasis added). This somewhat unclear
testimony appears to mean “I requested Mulimina to halt the
investigation pending a possible settlement.
This
part of the testimony of Greyling in chief and under
cross-examination by Heathcote, was not mentioned by the Court a
quo in its assessment and probably not considered by the Court
when it apparently accepted at face value the assertions of
Thambapilai and Metcalfe in their supporting affidavits attached by
applicant Malama-Kean in her review application to the Court a
quo.
In
the letter by Greyling and Associates to the Deputy
Prosecutor-General Mrs Imalwa, dated 13 November 2000 it was
confirmed that: “It has been conveyed to the investigation officer
that settlement negotiations were in progress and that if a
settlement could be reached, the criminal charges will be withdrawn.
Our instructions are further that criminal investigation in the
matter were put on hold for this purpose.”
It
is highly unlikely that applicant/appellants legal representatives
were not aware of Greyling's view and that it was communicated to
Mulimina with a request to halt the investigations, pending the
settlement.
It
seems probable that the settlement eventually reached referred to
above, involved applicant as well as one or more of her legal
advisers and that they were at all relevant times not only aware of
it, but participated in it.
To
achieve this settlement, must have been a vital link in the strategy
of applicant and her legal advisers to end the criminal prosecution.
That attitude clearly also emerges from the point of view put to the
Court by Barnard, applicants third legal representative, when he
submitted in his address to Court in the remitted proceedings that:
“The
Prosecutor-General has no right to refuse the offer of the
complainant. The State cannot proceed without the complainant.
Whether the allegation is theft, it has to come from the
complainant.”
This
submission was of course without any legal foundation, but gives
insight in the strategy of the applicant and her legal advisers at
the relevant time. I therefor find it difficult to believe that they
were mislead by Mulimina and/or the prosecution and that if they had
known that the investigation was on halt, they would have strenuously
objected to any further postponements. It seems more likely that the
legal representatives did not object to the applications for
postponement because they were busy with negotiations with
complainant and its legal representatives to achieve a settlement
which would end the dispute between them and as they saw it, cause
the criminal charges to be withdrawn.
Applicant
Malama-Kean in her supporting affidavit in the review proceedings
said:
“If
I was aware of the fact that the investigation was halted, I would
immediately have instructed my legal practitioners (and I believe
they would have in any event done so on their own initiative) to
strenuously object to myself being incarcerated or to remain under
the most stringent bail conditions, while no investigation was
conducted;”
(My
emphasis added)
It
should be noted that the applicant did not say that she or her legal
advisers would have objected to a postponement and/or asked for a
permanent stay of prosecution, but would have objected against
“incarceration” and the “most stringent bail conditions, whilst
no investigation was conducted.”
All
these points however loses most of its relevance and significance,
considering that in fact the investigation was not halted and at
most, the investigation was not pursued with the same vigour as
before, once the settlement negotiations were brought to the
attention of Mulimina, together with a request by Greyling to halt
the investigation pending the outcome of the settlement negotiations.
It
follows from the above that Mulimina did not suck from his thumb this
story of halting the investigation pending the finalization of the
settlement negotiations. The idea to halt the investigation
originated from Greyling and was communicated to him by Greyling and
was well-known at least to, Thambapilai, the first legal
representative of the applicant, and probably to those following him
namely Metcalfe and Barnard. None of them ever objected to the idea.
Although Mulimina did not invent the idea, he used it as an excuse
for not continuing the investigation with the required vigour. To
justify this he told a half-truth, namely that he halted the
investigation completely, whereas he only slowed down the pace.
In
the review application before the High Court he explained:
“As
a result of this request and also because I did not want to
unnecessarily spent thousands of dollars of taxpayers money on an
unnecessary investigation, I decided to heed to the said request. I
submit that I only did what any investigating officer would have done
in the circumstances.”
Mulimina
in this affidavit also made it clear that he did in fact obtain some
statements and other evidential material which were “easily
available.”
In
the circumstances Mulimina’s aforesaid modus operandi was
not in bad faith or grossly unreasonable and/or grossly negligent.
At most he was negligent in not pursuing the investigation with the
necessary vigour during the period between beginning of July and end
of November, a period of approximately four (4) months.
This
modus operandi to slow down the pace of the investigation was not the
correct course for an investigating officer to take, but it was
understandable and mitigated by the attitude and conduct of the legal
representatives of the complainant, in which the applicant’s legal
representatives apparently acquiesced.
His
misrepresentation to the Court as contained in his affidavit filed in
the State’s remittal application on June 2001 and in the remitted
proceedings itself to the effect that he had halted the
investigation, wholly or in part, must be deprecated. The said
misrepresentations, however, was not in itself the cause of any
unreasonable delay.
The
only other reference to the delay which followed from December 2000
is found in the reasons for the judgment of the Court a quo on
15th October 2001. The Court reasoned:
“It
was not until June 2001 that the investigation was completed and the
earliest trial date that could be given was October 2001, some 16
months after the applicants arrest.” That, the Court further
found, is delay, which is presumptively prejudicial.”
The
Court concluded that “the trial of the applicant has not taken
place within a reasonable time and she is entitled, to relief in
terms of article 12 (1)(b).”
The
mere length of the time which expired between arrest and trial, is
only one of the factors to be considered, not a conclusive criterion.
I
would have expected some analysis of the events following December
2001, such as the investigation undertaken during that period; the
applications to Court on behalf of the applicant, and the
finalization of these applications; whether or not the State was in
position to proceed with the prosecution and the trial when
applications and counter applications were pending and judgments were
awaited during the period April 2001 – October 2001; whether,
considering the scarcity of qualified manpower and skills to
accomplish the massive task, following Namibian independence,
particularly related to the increase in crime, the period of 6 months
for the completion of the investigation was unreasonable and if
unreasonable, was it caused by a deliberate stratagem by State
officials or was it caused by incompetence and/or negligence and if
negligence, was it gross negligence; was the accused person and/or
his/her legal representatives to blame for some of the delay; did the
accused and/or such representatives assert his/her rights to a trial
within a reasonable time; how serious is the alleged crime and how
complex the investigation; what is reasonable considering the
fundamental rights and interest of the accused person weighed against
that of the victim and generally, the public interest relating to the
administration of justice.
The
Court a quo dealt with the complexity of the case as follows:
“I
take account of the fact the case against the applicant is, in all
probability, a complex one but that does not weigh too heavily
with me.”
(My
emphasis added).
The
reason which the Court advanced for saying that the probability that
the case is complex “does not weigh too heavily with me,” appears
from the following: “I respectfully agree with the following
observation of Kriegler, in Sanderson v Attorney General, Eastern
Cape, 1998 (1) SACR 227 at 243 f:
“If
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.”
I
respectfully also agree with this dictum, provided it is properly
applied. The key words are “and there is no compelling reason for
this”, referring to the case, not having been adequately prepared.
In
the instant case, the Court correctly found that the arrest of the
applicant was a “pre-emptive strike.” The reasons for this
“pre-emptive strike” emerge clearly from the record and was to
the following effect:
The
complaint of the possible theft of about 2.8 million from the
complainant was lodged with the police at a time when the applicant,
Malama-Kean, who was an Executive Director of the complainant and one
of the suspects, was on the verge of leaving the country.
In
the light of the fact that she was a Zambian citizen married to a
British citizen, she would have been outside the jurisdiction of the
Namibian Courts and police, once she left Namibia. This was the
reason for the pre-emptive strike and appears to me as a good reason
for her arrest, at a time when the complex case had been
“inadequately prepared.”
That
being the case, the Court a quo in my respectful view
misapplied the above quoted dictum in Sanderson. I must
emphasize however, that the fact that the pre-emptive strike was
justified in the circumstances, cannot in itself be a justification
for not pursuing the investigation with vigour afterwards. The need
for a pre-emptive strike indeed placed the duty on the investigators
to pursue the investigation with increased vigour, and with all means
at their disposal in order to ensure that a fair trial can take place
within a reasonable time.
Although
as I have stated supra, the notorious scarcity of qualified manpower
and skills to accomplish the massive task following Namibian
independence, particularly related to the increase in crime, is
always a factor to be weighed in the scale when considering the
reasonableness of any delay, this cannot become a justification for
depriving a suspect or any accused of his/her right to a fair trial
within a reasonable time. The duty to ensure this is placed by
article 5 on the Executive, the Legislature, the Judiciary and all
organs of the Government and its agencies.
The
further reason advanced by the Court a quo for its decision
reads as follows:
“Next,
there is the neglect on the part of the investigation officer to
pursue the investigation with vigour. The ultimate responsibility
for such neglect must rest with the State, not the applicant.”
As
indicated in my analysis supra, this accusation can at most
apply to the period July 2000 to middle November 2000 and not to the
period thereafter. Furthermore, even though there was some
negligence in not pursuing the investigation during that period with
the necessary vigour, the failure of the investigating officer to do
so, was mitigated by the role played by the applicant and her legal
advisers and the complainant and its legal advisers. This role was
to endeavour to achieve a settlement between the accused Malama-Kean
and the complainant and in that manner also achieve the withdrawal of
the criminal charges; to request the investigating officer to suspend
the criminal investigation until the negotiations for a settlement
has been concluded; alternatively to put it to the investigating
officer that there should be such a suspension and/or to acquiesce in
such request or communication.
In
addition to this, the applicant’s lawyers did not assert her rights
during this period by objecting to the postponements. In most cases
the postponements were granted pursuant to consultations between
prosecutors and defence representatives.
Consequently
it is not justified in all the circumstances to put the blame for the
delay during this period exclusively on the State.
A
Court making a value judgment, must consider all the relevant
information before it to decide on the degree of complexity and how
much time is reasonably required to complete the investigation.
In
this case, Mulimina testified in the remitted proceedings on
26/6/2001 that the case was “of complex nature, since the offence
was committed in 1997, 1998, 1999 up to May 2000. It was almost 3
years and 5 months. During April 2001, I informed the prosecutor
Haindobo that I needed three months to complete my investigations as
it was so difficult to trace witnesses. Some witnesses are in Katima
Mulilo, Khomas, Rundu in Kavango Region, Ohangwena, Oshana and
Oshakati and Omusati region. The kilometre from Oshakati to Katima
Mulilo is 1300 (km).
It
is so difficult because to trace these witnesses. The office in
Rundu was closed during December 1998. It was now for us to trace
the employees who were employed by that company and that was so
difficult …. Oshana, Omusati and Oshakati we could not even finish
investigations for four months as it was difficult to trace them.
Some of them resigned.
If
there was no intervention after the arrest of the accused, the
investigation would already have been completed.”
He
also testified that his investigation has now been completed and the
docket already with the Prosecutor-General for his decision.
Mulimina
elaborated on the above in his supporting affidavit opposing the
applicants review application where he said:
“It
would be evident from the investigation done and statements taken
that I indeed during the said period (i.e. from date of arrest to
November 2000,) obtained the following number of statements on the
following dates, to wit:
28th
July 2000 – 6 statements;
8th
August 2000 – 6 statements;
29th
August 2000 – 1 statement.
As
also would be evident from the contents of the police docket the said
investigation was an extensive one and comprised inter alia:
Approximately
46 statements;
Hundreds
of exhibits and/or documents which are filed in 6 arch files.”
He
then expressed the opinion that in his experience as a police
officer, “a period of 12 months in any event would not have been
unreasonable to complete the investigations herein. This I say in my
experience as an investigating officer who has investigated hundreds
of cases over a period of 15 years.”
Advocate
January, also a Deputy Prosecutor-General attached to the office of
the Prosecutor-General in Windhoek, made the following statement in
his affidavit in support of the opposition to applicant’s review
application:
“The
case docket in the case of the State v Malama-Kean was
assigned to me for decision on 23 March 2001. After perusal of the
case docket I was of the opinion that prima facie there is a
case against both the accused. At that point in time I was however
informed that there were still investigations outstanding. I
accordingly instructed the investigating officer to finalise the
further investigations as a matter of urgency and forward all
outstanding documents to our office.
I
have received the outstanding documents and statements when the
investigating officer and Advocate Imalwa attended the previous
appeal proceedings around 12 to 13th June 2001. The
decision was eventually taken on 27th June 2001 and the
instruction issued on 29th June 2001. An amended
instruction was issued on 5th July 2001 as there was a
mistake on the name of the second accused. …”
“The
case involves an amount of N$2894 740.10 over a period of about 3½
years. Numerous cheques and documents are involved. In my
experience, an investigation of this nature usually takes time to be
finalised. Apart from the allegations that the investigation was
partly delayed as a result of settlement agreements, I am of the view
that a period of about 9 (nine) months is not an unreasonable time to
finalise investigations of this magnitude.
The
applicant in this matter elected to remain silent on her warning
statement and did not provide any information to enable the
investigating officer to investigate any justifiable defence that she
might have or to assist the Prosecutor-General in his decision.”
It
should also be kept in mind that the applicant in her viva voce
evidence on 9/4/2001, testified that her then legal
representative Mr Metcalfe already suggested to her at an early stage
that “if she couldn’t wait for trial in 3 years I could reach an
outside court agreement which involved the money…”
This
indicates that Metcalfe at an early stage estimated the time it will
take to get finality if there was no settlement with the complainant.
There
was no evidence or other material before Court to rebut these
opinions of Mulimina and January as to reasonableness of the delay.
These
opinions, underline the need for the Court to be cautious in coming
to a conclusion as to when the delay can be said to be unreasonable
and caused by the State. Obviously ultimately the Court will also
rely on its own experience in the Courts in making its difficult
value judgment.
I
have carefully considered the events during the period December 2000
– October 2001. In my opinion, applicant has also failed to prove
any unreasonable delay for which the State was responsible during
this period.
The
Court a quo did not deal with any of the other complaints and
alleged irregularities raised by or on behalf of the applicant.
These were formulated as follows:
1. “(a) The
investigating officer, Inspector Mulimina, never stopped with his
investigation and therefore did not inform the respective prosecutors
that the investigation was halted, alternatively;
(b) The
prosecutors who appeared in the Court (and who had knowledge of the
fact that the investigation was stopped) failed to inform the Court
about the fact that no investigation was being conducted. I
point out that Inspector Mulimina testified during the trial
proceedings that he did inform Prosecutor Imalwa that the
investigation was halted. I accordingly submit that if that is true:
Imalwa
knew about the fact that the investigation was halted during July
already; and therefore
Imalwa
failed to inform the Court about such fact;
Imalwa
failed in her ethical duty to provide me with a fair trial.”
I
have fully dealt with the complaint against Mulimina and need not
elaborate further on that.
The
whole complaint is based on “the fact that no investigation was
being conducted.” But that turned out not to be a “fact” as
the investigation was never stopped but at most, was not pursued with
the necessary vigour.
Consequently
the basis for the complaint fell away.
Ms
Imalwa vehemently denied any misrepresentation on her part. The fact
is that she herself did not appear for the State in most of the
applications for postponement.
The
next argument was that whereas she knew the contents of the
investigation diary indicating that the investigation was never
suspended, she became party to Mulimina’s deception by using his
affidavit in the State’s remittal application, and again in support
of the State’s opposing affidavits in applicants review
application, to the effect that the investigation was halted during
the period July – November because of the intervention of the legal
representatives of both applicant and complainant.
Again,
the fact that the investigation was never stopped, deprives the
complaint of most of its substance and cannot be used as a ground for
the relief claimed.
No
wonder that the learned judges in the Court a quo ignored this
complaint and did not comment on it or the following complaint at
all.
“The
presiding magistrate was biased against the applicant.”
This
ground is not covered by the notice of appeal but was argued before
us. Although it is therefore not necessary to decide this issue,
some brief remarks may be appropriate.
In
the notice of appeal before us, the alleged irregularities were
referred to in a very general sense with only a specific reference to
one alleged irregularity. In this regard the notice read:
“In
as far as the learned judges had a discretion once they found that
the trial did not take place within a reasonable time, the learned
Judges erred in not releasing the appellant from prosecution,
particularly in circumstances where:
(a) as
a result of pre-trial irregularities, the misleading of the Court and
the State and/or the prosecutors acting on behalf of the second
respondent, it was an appropriate case to release the appellant
without being necessary to determine whether or not the appellant
will suffer trial related prejudice; …”
This
complaint against the magistrate, as I understand it, is based on the
alleged fact that she was before her elevation to the bench, a
prosecutor, serving as such under Imalwa, the Deputy
Prosecutor-General for the region, and her refusal to allow certain
statements to be handed in by the defence whilst allowing others
which were handed in by the State.
The
fact is that the statements handed in by the State were handed in by
consent and those by the defence were objected against. It could not
be contended by counsel for the applicant that the statements which
the defence wished to hand up, were admissible.
But
it is not necessary to take the argument further except to say that
this a flimsy argument to support a complaint of so serious an
allegation against the presiding magistrate.
In
any event, should the trial against the applicant proceed, it will
take place before another Court, being the Regional Court, and
another presiding magistrate. If there was any prejudice at all, it
would relate to pre-trial prejudice in regard to the order relating
to the conditions of bail made by the said magistrate in the remitted
proceedings. It will not amount to trial related prejudice or
exceptional circumstances, which standing alone or in conjunction
with other grounds, justify an order by this Court for a permanent
stay of the prosecution.
The
appellant and her legal advisers had made much of the so called
weakness of the case against her, mostly based on concessions made in
cross-examination by the investigating officer Mulimina when he
testified in the remittal proceedings. One must bear in mind that
the appellant and her said adviser now purported to rely on a witness
whom they have sought to discredit at the same time.
Furthermore
the concessions he had made, may be due to lack of expert knowledge
regarding legal questions and cannot be substituted for the view of
Advocate January, the Deputy Prosecutor-General attached to the staff
of the Prosecutor-General in Windhoek, who had the responsibility to
evaluate the case when the investigation was completed. He stated in
his affidavit in opposition to appellant review, that in his opinion
there was a prima facie case.
Consequently
the Prosecutor-General, who had the exclusive jurisdiction to decide
whether to prosecute or not, decided to prosecute.
In
July 2001 the State was ready to proceed on an available date and the
trial was then set down for October 2001, after consultation with the
legal advisors of both accused.
Appellant
up to that time had refused to make a statement to the investigating
officer, outlining her defence, and so assisting in the conclusion of
the investigation and the decision to be taken by the
Prosecutor-General.
The
time was now opportune to be served with all the statements relied on
by the State and to request further particulars. If the State did
not comply satisfactorily with such request, the appellant could have
made use of the means and remedies available in our law. If
particulars were insufficient, or the charge as supplemented by
particulars did not disclose a crime or offence, the applicant could
apply to Court for the dismissal of the charge, without going through
the stress and expense of a trial. Furthermore, the applicant armed
with these statements and further particulars, could apply for a
permanent stay of the prosecution.
Ultimately,
if it turns out that there was no case against the appellant, the
trial could be brought to a speedy conclusion. The
Prosecutor-General could even be sued for damages for malicious
prosecution if it turns out that the prosecution was groundless and
mala fide. If the trial runs its full course, the accused may
be acquitted. If not and she is convicted and sentenced, the
convictions and sentences may be set aside on appeal – not only on
the merits, but on the grounds that the accused did not have a fair
trial. Monetary compensation could then be applied for and ordered
in terms of art. 25(4) of the Namibian Constitution.
If
the applicant went through some of these stages, she would also have
been in a much better position as at present to apply for a permanent
stay of prosecution. Unfortunately, the applicant and her legal
advisers applied for review without and before using the aforesaid
procedures. They jumped the gun – idiomatically speaking and by
doing so, have prolonged the delay and the agony involved in it.
SECTION
E:
CONCLUSION
I
am not satisfied that the applicant had proved that there was an
unreasonable delay for which the State was responsible during the
period July 2000, - October 2001. I must stress however, that a
delay of 16 months will in most cases, constitute an “unreasonable
delay” provided the State is responsible for it. My conclusion in
this case that unreasonable delay was not proved by the applicant is
made in the light of all the unusual circumstances present in this
case.
Although
the appellant was allowed out on bail in due course after arrest, the
conditions of bail regarding reporting twice a day, later reduced to
once a day, and her continued separation from her husband and
children during the whole period without being allowed to visit them
in England was an extreme hardship throughout the whole period when
appellant was awaiting trial. But no allegation was made or evidence
produced that the husband of applicant and her children were deprived
by state’s action or inaction to visit the applicant in Namibia
during the period that she was awaiting trial.
On
the other hand much of the prejudice suffered by the appellant was
due to systemic delay, which was within reasonable limits and to
which the appellant and her legal advisers had contributed.
I
conclude that the prejudice suffered by the appellant was not
irreparable trial related prejudice and that there are also no other
exceptional circumstances entitling the appellant to a permanent stay
of prosecution, whether in terms of article 12 (1)(b) or article 5
read with article 25.
It
follows from the above findings and reasons that the applicant is not
entitled to a permanent stay of prosecution in terms of art. 12(1)(b)
or at all.
Applicant
is also not entitled to the relief of being released from all the
obligations of the pending trial under art. 12(1)(b) because
applicant has not succeeded in proving that a trial referred to
subparagraph 1(a) of art. 12, has not taken place within a reasonable
time.
The
final question then is whether or not the applicant is entitled to
some relief at all. In my respectful view, the pre-trial hardship
and a certain amount of prejudice was caused in part by the wrong and
negligent conduct of the investigator.
In
such circumstances, the Court would be entitled to make an
appropriate order allowing some relief to the applicant, under
article 25(3), read with art. 5 of the Namibian Constitution. The
order made by the Court a quo appears to me to be an
appropriate order in substance, except for the fact that it was based
on art. 12(1)(b) of the Namibian Constitution and must be further
adapted to provide for the lapse of time since the making of the
order. The contemplated order could have been made by the
magistrate’s court or by the Court a quo on review or appeal
to it, without having recourse to article 12(1)(b) or 25(3) read with
art. 5 of the Namibian Constitution. Similarly, the Court a quo
could have granted such an order under its wide discretionary powers
in terms of art. 5 read with art. 25. And this Court can of course
act under its ordinary powers on appeal to grant such an order
without resorting to art. 25(3) read with art. 5.
A
last question relates to the appropriate cost order. Counsel for the
applicant, Mr. Heathcote, has argued that if the appeal succeeds, the
order for costs in the Court a quo should stand and the
respondent should be ordered to pay the costs of appeal. Should the
appeal however fail, the applicant should not be mulcted in having to
pay the costs of appeal because it is a constitutional matter where
an applicant should not be disadvantaged to take an arguable case to
the highest court in Namibia.
Mr.
Botes on the other hand argued that if the appeal is dismissed, the
applicant should be ordered to pay the costs in both the Court a
quo and the costs of appeal in this Court.
In
my respectful view, the case was not only arguable, but extremely
difficult. In the light of the conflicting decisions in the High
Court in previous cases, it is in the interest of justice that this
Court should give a binding decision.
Counsel
for all the respondents placed very thorough and interesting argument
before this Court. I wish to express my appreciation for their
contributions.
I
think that justice will be served if the parties are ordered to pay
their own costs, not only on appeal, but also in regard to the Court
a quo.
In
the result the appeal fails in substance but the following order is
substituted for that in the Court a quo:
1. The
notice of motion is amended by the insertion of the words “and/or
the decision of the first respondent on 5th July 2001”
after the word “proceedings” in paragraph 2 thereof.
2. The
case against the accused must be set down for trial on the earliest
possible date following upon this judgment, after consultation with
the applicant and/or her legal advisers as well as with the second
accused and/or her legal advisers.
3. The
order of the first respondent made in the magistrate’s court,
Oshakati, in case no. 491 B/2000 on 5th July 2001 refusing
to release the applicant from the conditions of her bail is set aside
and the following order substituted for it:
“The
accused is released on bail in the amount of N$50 000,00 on condition
that she appears in the Regional Magistrate’s Court at Oshakati on
the new date and time set down for her trial, failing which she may
be arrested and her bail cancelled and forfeited to the State.”
4. The
applicant is released from all her conditions of bail other than
those contemplated in the order under par. 3, supra.
The
order for costs against 2nd respondent in the Court a
quo is set aside.
Each
party has to pay his/her own costs, both in the Court a quo
and in regard to this appeal.
O’LINN,
A.J.A
I
agree
STRYDOM,
C.J.
I
agree
CHOMBA,
A.J.A
/mv
COUNSEL
ON BEHALF OF THE APPELLANT: R. Heathcote
INSTRUCTED
BY: H. Barnard & Partners
COUNSEL
ON BEHALF OF THE RESPONDENTS: Mr. L.C. Botes assisted by
Mr.
H.C. January
INSTRUCTED
BY: The Government Attorney