S v Pentz (Case No. CA 160/2007 ) [2008] NAHC 104 (02 June 2008);


Full judgment

CASE NO. CA 160/2007


In the matter between:




CORAM: SILUNGWE, A.J. et Frank, A.J.

Heard on: 2008.06.02

Delivered on: 2008.06.02 (Ex Tempore)




[1] This is an appeal against the decision by the Regional Magistrate’s Court on the 17th of September 2007. The appellant at that stage and today still is facing a charge of murder, but was released on bail. At the time of the hearing in the Regional Court the bail conditions were as follows, namely, the appellant was released on bail of N$10 000.00 coupled with the following two conditions, namely that the Namibian police or the office of the Prosecutor-General would be placed in possession of the appellant’s South African passport which they could return to him in their discretion when applied for it by the appellant on temporary basis to go to South Africa for business reasons or for whatever other purpose. The second condition was, that he had to report on the first Thursday of every month at the Windhoek police station. These conditions that are stipulated were essentially agreed on between the parties.

[2] The evidence of the appellant which he gave under oath at the Regional Court was to the effect that in the past whenever he wanted to visit his family in South Africa or intended to go on business to South Africa his passport was handed to him and there was no problem, and that on his return from South Africa he then handed it back to either the investigating officer or the Prosecutor.

[3] As far as the second condition is concerned he testified that the situation at the police when he wanted to report was not up to scratch in that his file was never at hand and they had to look for a file and create documents so as to enable him to report, and as far as he was concerned this reporting became a nonsensical matter because it was clear that the police did not apply their minds to this as they did not even have his file with them.

[4] I interpose here to say that the arrangement as mentioned above apparently caused the appellant no problems until the temporary handing over of his passport was refused, i.e. a request for the delivery of his passport was refused when he wanted to go to South Africa during the period December 2007 to January 2008 over the Christmas holidays to visit his family. This refusal prompted him to bring an application to the Regional Magistrate’s Court. It is this application that forms the subject of this appeal.

[5] In that application, the main thrust whereof was that the bail conditions be set aside, his complaint was that his passport was not handed to him as it was done about seven times previously and the chaotic conditions at the police station. At the hearing of the application the appellant gave evidence. The State tendered no evidence whatsoever although it cross-examined the appellant. In the evidence the appellant testified that should the Regional Court not be satisfied that his bail condition be changed he was asking an order from the Regional Court that his passport be handed over to him for two purposes; namely, to visit his family as already mentioned, and secondly he had to apply for a renewal of his residence permit which was about to expire and that he needed his passport for that purpose as well.

[6] The lawyer who appeared on behalf of the appellant also in that Court indicated in the alternative to the application to have the two conditions set aside, that in the alternative he would seek an order to have the appellant’s passport handed back to him for the purposes of his visit to South Africa and for the purpose of the application for the renewal of his residence permit. The person who appeared for the State at the hearing consented to the handing over of the passport for the purpose of applying for the residence permit. After hearing this evidence and despite the concession by the person who appeared for the State the Regional Magistrate simply dismissed the application.

[7] In the reasons forthcoming for this appeal the Regional Magistrate ignores the alternative relief, namely, the temporary relief of the handing over of the passport for the purposes of travel to South Africa and for the application for the residence permit and concentrates solely on the other conditions of the bail. I am not sure whether the magistrate, in view of the fact that the time period for which the possession of the passport was intended had expired, decided not to deal with this aspect or whether the magistrate in fact misdirected herself at the time of the hearing by not dealing with this aspect at all.

[8] The evidence by the appellant which was not challenged at all to the effect that on seven previous occasions he was handed his passport for travel to South Africa by the police or the Prosecutor cannot be ignored and no reason was forwarded on behalf of the State as to why on this occasion they would not consent to this procedure. Similarly, as indicated already, the State agreed or consented that he should be handed his passport for the purpose of the renewal of his residence permit.

[9] The question that thus arises is whether the magistrate should have granted the relief applied for, namely, the cancellation of the two conditions and alternatively the relief relating to the temporary handing over of the passport to the appellant.

[10] As far as the main application is concerned as indicated already these conditions were basically set by agreement with the accused. Furthermore as is also evident from his evidence he did not have a problem with these conditions, save for the chaotic nature of what he found at the police station, in the sense that they interfered with his business or with his social life to any great degree. His real problem which also caused the bringing of the application was the sudden refusal to hand him his passport when in the past it was handed to him without queries.

[11] Mr Botes submitted that both these conditions are actually of no value at all and should have been scraped by the magistrate. I do not agree. The handing over of the passport to be kept in custody by the investigating officer or the Prosecutor-General is a measure in terms whereof the prosecution can take notice of the applicant’s movements who is a South African as already mentioned. It is indicative of the fact that the chances of him absconding is not very high but it still gives the prosecuting authority some measure of control and of knowledge of the applicant’s movements. In this way they can at least take immediate action if the applicant does not honour his commitment to return and I would assume they also take care to see for what purpose the applicant needs the passport and to take cognisance of where he is going and where he can be contacted and when he will be coming back from South Africa so that if anything untoward happen they can follow the matter up immediately.

[12] Similarly, the condition as to the reporting to the police is in the same vein and the fact that the police, administratively, are not doing it as they should, I do not think assists the appellant. The condition is there for a certain purpose and it should be exercised for this purpose, and I can just implore the police to ensure that the proper procedures are in place to make sure that this limited amount of control and/or tracking of the applicant’s movement is kept in place in view of the fact that he is facing a serious charge coupled with the fact that he is a foreign national.

[13] I am thus not convinced that as far as the bail conditions are concerned that anything should be done to change them, and in fact, as I have already indicated, they did not seem to bother the appellant too much when the discretion of the authorities was exercised in his favour and in fact he initially agreed to these conditions.

[14] As far as the temporary returning of his passport was concerned, for the purposes of visiting South Africa during the last December holiday and to apply for his residence permit to be renewed, the matter is somewhat different. In view of his evidence that permission was granted to him without problem on numerous previous occasions and the fact that the State did not indicate at all on the record what their problem was on this occasion when they refused it, in view of the fact that the State conceded that he should be able to apply for his residence permit and that for that purpose he needed his passport, the magistrate should have granted at least that application after hearing the evidence.

[15] The temporary order that was sought is actually of academic interest now, but in my view, just for the record and to put the record straight, the order that the magistrate should have granted is the following:

(a) That the Namibian police and/or the office of the Prosecutor-General is ordered to return the appellant’s passport to him immediately:

  1. to enable him to travel to South Africa for the period 13 December 2007 to 15 January 2008, both dates inclusive; and

(ii) to enable him to apply for the renewal of his residence permit.

(b) The condition that the accused is to report to the Windhoek police station is suspended during the period 13 December 2007 to 15 January 2008.

(c) The accused is ordered to hand back his passport to the investigating officer after his return from South Africa and/or after the renewal of his residence permit whichever is the latest.

(d) The accused’s bail in the amount of N$10 000.00 is extended until the 22nd of February 2008 being the next date of the appearance of the accused in the Regional Court, Katutura.

(e) The accused is warned to appear in the Regional Court, held at Katutura at 08:30 on the date referred to, and to remain present at Court until his case is called.

[16] As mentioned, this is the order that the magistrate should have given. The question that arises is: what order should this Court give now? As indicated, I am not satisfied that the accused made out a case for the bail conditions to be changed at all and consequently, these bail conditions should remain as before.

[17] I however do wish to point out that the prosecuting authority must take cognisance of the remarks aforesaid and that the return of the passport to the appellant on request is not to be refused on capricious reasons but is to be considered on a case by case basis. And secondly, I direct the investigating officer to assist the accused in his application for the renewal of his residence permit and in this regard to make the passport available to the relevant authorities to consider this application and to affix the necessary stamp if the application succeeds.

[18] Accordingly, save for what is stated above, the appeal is dismissed.


I agree



Instructed by:


Instructed by: Office of the Prosecutor-General