CASE NO.: CA 03/2009

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

MUNEPEMBE ALFREDO MENDE TIMOTEUS NAMBALA APPELLANT

and

THE STATE RESPONDENT

CORAM: LIEBENBERG, AJ et SHIVUTE, AJ

Heard on: 26 February 2009

Delivered on: 13 March 2009

JUDGMENT – BAIL APPEAL

SHIVUTE, AJ [1] This is an appeal by the appellant against the refusal of bail by the magistrate in the Outapi Magistrate’s Court.

[2] The appellant was charged in the Magistrate’s Court for contravening Section 46 of Act 81 of 1963, i.e. providing false information to be inserted in the birth register.

[3] The grounds on which the appeal is founded are the following:

The magistrate erred in law or in fact by finding that:

3.1 The appellant will abscond and will not stand trial;

3.2 That the appellant was not a Namibian national;

3.3 That it will not be in the interest of society and administration of justice if accused is granted bail;

3.4 That the release of the accused on bail will jeopardize the interest of justice;

3.5 That because the State fears that accused will abscond, bail cannot be granted;

3.6 That accused’s release on bail will jeopardize the State case.

The appellant in the court a quo was represented by Ms F Kishi.

[4] The grounds for the State to oppose bail were:

4.1 The risk of absconding;

4.2 The administration of justice.

[5] The State representative before us Mr Shileka raised, points in limine in his heads of argument namely:

5.1 A Notice of Appeal should contain grounds upon which such appeal is based. Those grounds must be set out clearly and specifically as provided by Rule 67 (1) of the Rules of the Magistrate’s Court. That the notice of appeal falls short of the mark set by Rule 67 in the sense that the grounds outlined are based on the findings, aspects or issues which were not canvassed by the learned magistrate in the court a quo.

5.2 Rule 67 (1) of the Magistrate’s Court dictates that an appellant must file a notice of appeal within 14 days after the date of sentence or order in question. In casu the bail application was dismissed on the 1^st of December 2008 and the notice of appeal is dated 17^th December 2008. In other words the notice of appeal was filed out of time therefore the appellant was supposed to file an application for condonation of his/her non compliance with the Rules of the Court as a matter of law.

[6] On the other hand the Counsel for the appellant Ms Kishi appears to have conceded that the notice of appeal was not filed within the prescribed time and filed a notice of motion applying for:

6.1 Condonation of the late filing of the notice of appeal.

6.2 Further and or alternative relief.

I now wish first to deal with the issue of the late filing of the notice of appeal.

[7] The appellant was refused bail on 1^st December 2008 and a notice of appeal was lodged on 17 December 2008 which means that it was lodged within 14 days therefore, not out of time. The 14 days would only have lapsed on 22^nd December 2008.

[8] When computing of any time expressed by the Rules of Court in days the following should be excluded 1^st day, Saturday, Sunday or public holidays, but inclusive of the last day. See Section 4 of the Interpretation Act, Act 33 of 1957.

This view is supported by the Rules of the High Court to be specific Rule 1 definitions which defines “court day” to mean any day other than a Saturday, Sunday or public holiday and only court days shall be included in the computation of any time expressed in days prescribed by these rules or fixed by any court order.

The court arrives at the conclusion that the notice of appeal was filed within the prescribed period.

[9] I now turn to the 2^nd point in limine which was raised by Counsel for the State namely that the notice of appeal filed by the appellant is not a valid notice of appeal as the appellant does not set out clearly and specifically the grounds of appeal, therefore it falls short of the requirements set by Rule 67, in the sense that the grounds outlined are based on findings or issues which were not canvassed by the learned magistrate in the court a quo. Therefore, the State prayed for the case to be struck from the roll.

Ms Kishi for the appellant submitted that there might be some repetition of the grounds addressed in the notice of appeal and that more grounds were raised than necessary but argued that the notice complies with the requirements. She even went further by saying that if the notice did not comply with the requirements, the magistrate would have expressed herself on the vagueness of the notice of appeal. Among the grounds of appeal stated by appellant are:

1. That the appellant will abscond and will not stand trial;

2. That the appellant was not a Namibian national and;

3. That it will not be in the interest of society and administration of justice if appellant is granted bail.

The Court having given due consideration to the arguments advanced by both Counsel and to the grounds of appeal in the notice this Court is of the opinion that the Notice of Appeal meets the requirements as prescribed in Rule 67 (1) of the Magistrate’s Court. The grounds were based on the reasons advanced by the Court when it made its ruling whether to grant bail or not and this Court does not expect the appellant’s counsel to be more specific because there is nothing more on the record for her to deal with.

[10] I shall now deal with the bail proceedings held in the Magistrate’s Court, Outapi on 24 November 2008.

The Appellant and his common law wife testified in support of his formal application for admission to bail. The Appellant testified that he was born at Okandikalela during December in 1976; his parents are both deceased, his father was a Kavango and his mother was a Ndongona who was born near Epalela in Namibia; he grew up in Rundu and in 2003 he came back and stayed at his house; he survives by selling cassettes; he is married to one Ndapandula Kapweya with whom he has two children; he is a father of eight children, six of them are born of different mothers and the elder child being ± 4 years old.

From Rundu he went to Walvisbay where he stayed for six years. He was baptized in 1992 at Walvisbay, however his baptism certificate was destroyed by fire. He managed to obtain a Namibian identity document as well as a passport after submitting his baptism certificate to the relevant authorities.

The Appellant identified an identity document and a copy of an expired passport which he indicated were taken from him by the immigration officer earlier. It appears from the appellant’s testimony that these documents were taken from him by the immigration officers who kept them and only returned them to the appellant after seven months. According to the appellant the reason for the immigration officers to take the documents from him is because they suspected him to be an Angolan citizen. The appellant testified that he is a Namibian citizen. He further testified that he takes care of his children and his wife, the latter being unemployed, making him the sole breadwinner.

[11] The appellant prayed for the Court to grant him bail in the amount of N$700. 00 coupled with conditions to report himself to the police. He further testified that he had no intention to abscond and, if he intended to, he could have done so already in the first instance before he was arrested.

[12] Under cross-examination the appellant disputed to be known as “Munepembe Alfredo Nambala” and indicated that his name is Mende Timoteus. He disputed to have been born at Ihinga in Angola. The appellant testified that his mother is Theresia Nambala and not Florida Kauluma, who lives at Ehinga in Angola. When the appellant was confronted by the State, that in Rundu, he was staying at the house of Theresia Nambala, who happened to be his sister, the appellant said she is her mother’s sister. He testified that he has relatives in Angola namely cousins who are staying at Ehinga. The appellant further testified that he will not run away because the day his documents were confiscated from him, was not the date he was apprehended. When the police came to look for him he was not at home and upon hearing the message that the police were looking for him, he went to report himself to the police.

The appellant testified that at that stage the police were looking for him because he was practicing as a traditional healer.

[13] The second witness who testified on behalf of the appellant was Ndapandula Kapweya who was traditionally married to him. She did not say much apart from saying she met with the Appellant at Okandiikalela in 1993 and that currently they are staying at Oshifo. She further testified about the children she has with the appellant and the other children born by the appellant with other women.

[14] The State called Anna Hauwanga who is the immigration officer at Omahenene border post. She testified that she met the appellant on 15 October 2008 at Oshifo Town Council when she was summoned to attend a meeting of the traditional healers and the appellant was one of the participants who participated as a traditional healer. Other participants suspected the appellant to be a foreign national.

Upon the information she received from the Councillor, she asked the appellant for his national documents. The appellant produced an identity card and an expired Namibian passport. She inquired from the appellant where he was born and the appellant said he was born at Okandiikalela at Mr Manene’s house. The appellant told the witness that his mother is Theresia Nambala who resides at his late father’s house. The witness was not satisfied by the appellants explanation and asked the appellant to give them one of his relative’s names who is staying at Okandiikalela. He mentioned one Nambahu Hambondo who is allegedly staying at Eunda, which casted further doubts in the mind of the witness concerning the appellant’s nationality.

The State witness decided to go with the appellant’s identity document and the expired passport and started to investigate by inquiring from people who were coming from Angola if they knew the appellant. One person confirmed to the witness that he knew the appellant and that the appellant came from Ehinga in Angola. The witness testified further that on 30 October 2008 she and Mr Tobias drove to Ehinga, Angola which is about 70km from the Namibian border. They went to one councillor in Angola by the name of Pasqual. The councillor told them that he knows the appellant by the name Munepembe, who was born in Angola and he practices as a traditional healer. Pasqual then took the witness and his companion to Ms Frolida Kauluma. The witness showed the appellant’s identity documents to Ms Kauluma and asked her if she knew the appellant. Ms Kauluma identified the identity document of the Appellant as that of her son Munepembe Alfredo Mende Da Silva who is her 8^th child. Ms Kauluma further told the witness that her first born is Theresia Nambala. The witness further testified that the appellant got the Namibian identity documents by providing false information to the officers concerned. It is the evidence of Ms Hauwanga that if the appellant is granted bail he will abscond to Angola.

[15] In cross-examination the appellant’s Counsel put it to the witness that there is no law which prevents a foreign national to be granted bail. The witness conceded, however she expressed an opinion that there is a possibility for him to go to Angola because when they were looking for him on 30 October 2008 he was said to be in Angola.

[16] Under further cross-examination on whether the appellant reported himself to the police the witness testified that the appellant reported himself because he was told that the headman and the villagers wanted to chase him away from the village and the police would offer him protection.

[17] To the question why the appellant did not run away if he knew that the investigation against him already started on 28 October 2008 the witness, said that the Appellant did not know that he was going to be arrested.

[18] Under further cross-examination on why the appellant should be arrested if he is in possession of Namibian documents, the witness said that despite appellant insisting that he is a Namibian citizen, there is information from his mother that he is not.

[19] The magistrate, having summarized the evidence, concluded that it is not in the interest of the administration of justice that appellant be released at this stage and that he be detained until the finalization of the case as the State is casting doubts of absconding.

[20] The appellant is now attacking the conclusion reached by the learned magistrate.

[21] Ms Kishi submitted on behalf of the appellant that no sufficient grounds were adduced before the court a quo that the appellant will abscond. If the appellant wanted to abscond he could have done so before his arrest. She further argued that the interest of justice was not at stake as appellant reported himself to the police. In addition she referred to a passage in the unreported case of Charlotte Helena Botha vs The State, CA 70/95 delivered on 20 October 1995 that the Court ignored the guidelines spelled out in that case namely; that the reasons should be stated clearly why it is said that the appellant might abscond and not stand his trial.

[22] Ms Kishi argued further that no matter what the appeal court’s views are, the real test is whether the magistrate who had the discretion to grant bail, exercised his or her discretion wrongly. The Court will always grant bail, where possible and will lean in favor of and not against the liberty of the subject, provided it is clear that the interest of justice will not be prejudiced.

[23] I will now consider the submissions made by the Counsel for the appellant.

[24] It is trite law in bail applications that the onus of proof lies with the appellant to prove on a balance of probabilities that he or she will stand his trial and not abscond if released on bail.

The State has the general duty to place evidence before court, the facts revealed by the investigation and in particular, whether or not the State has a strong case and the nature of that case.

[25] In the same vein the appellant’s legal representative has a similar duty to lay a proper factual basis upon which a bail application can be determined, and if, for one reason or another this is not done the Court itself should play an activist or inquisitorial role and conduct an enquiry into the matter where the circumstances justify it. See Lazarus Shaduka vs The State, CA 119/2008 NA HC delivered on 24 October 2008.

[26] In Charlotte Helena Botha vs The State supra paragraph 15 – 16, O’ Linn, J (as he than was) stated the following:

“The opinion of the investigation officer or questions as to whether or not it is likely that the accused will abscond, or interfere with state witness or with the investigations as distinguished from facts placed before court should also carry weight.”

[27] In this case there is evidence that the appellant’s mother is in Angola, although he claimed in his evidence that she is deceased. Through cross-examination he claimed that his mother is Theresia Nambala just to change his version again that Theresia Nambala is his mother’s sister. There is also information that when the police were looking for the accused he was said to be in Angola. Although this evidence is hearsay, there is ample authority that hearsay evidence is admissible in bail applications. As to the issue that if the appellant wanted to run away he could have done so since he was aware of the fact that the police were looking for him, in fact there is evidence from Ms Hauwanga that the appellant was not aware that the police were looking for him in connection with the charge he now faces.

[28] Regarding the contention that no facts were placed before the court a quo on which the magistrate could have formed an opinion that it would not be in the interest of the administration of justice, I wish to consider the following;

[29] In the traditional approach questions considered by the Courts are firstly whether the appellant has proved that he or she will stand trial, secondly whether there is a reasonable likelihood that if released on bail the appellant will interfere with witnesses or tamper with the relevant evidence or cause such to be suppressed and thirdly, how prejudicial it might be for an appellant to be kept in custody by being denied bail. (S v Acheson supra page 19 – 20)

As Mr Shileka rightly pointed out that this Court is bound by the provisions of Section 65 (4) of the Criminal Procedure Act, Act 51 of 1977, not to set aside the decision against which the appeal is brought unless such court is satisfied that the decision was wrong.

Subsequently the Criminal Procedure Act had been amended by Act 5 of 1991 to the effect that bail may be refused if, in the opinion of the Court, it is in the interest of the public or in the interest of the administration of justice that the accused be retained in custody pending his or her trial, notwithstanding that the Court is satisfied that it is unlikely that the accused, if released on bail, will abscond or interfere with any witnesses or with the police investigation. The question when it will be in the interest of the public or in the interest of the administration of justice has previously been considered by this Court and the difficulty in defining those concepts was recognized, but nevertheless it was held that these concepts should be given a wide meaning.

Factors which may be considered are the pronouncement of the Courts over a long period and of the legislature, as crystallized in legislation, whether the release on bail is likely to constitute a threat to the safety of the public or the maintenance of public order, where there is a strong prima facie case against an accused, a Court will be entitled to refuse bail even if there is only a reasonable possibility that the accused will abscond or interfere with state witnesses.

[30] It is trite law that an appeal court will not interfere with the findings of a magistrate unless it is persuaded that the magistrate exercised her/his discretion wrongly.

[31] S v Barber 1979 (4) (SA) 218 (SWA) at 220 E – H cited with approval and referred to in Timotheus Joseph v The State unreported CA 63/95 and Hans Jurgen Gunter Koch v The State unreported CA 111/2002 delivered on 12 December 2002 when Hefer, J stated the following:

“It is well known that the powers of this Court are largely limited where that matter comes before it on appeal and not as a substantive application for bail. This court has to be persuaded that the magistrate exercised the discretion which he has wrongly. Accordingly although this court may have a different view it should not substitute its own view for that of the magistrate because that would be an unfair interference with the magistrate’s exercise of his discretion. I think it should be stressed that no matter what this court’s own views are the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly..”

[32] The magistrate in refusing bail considered the interest of the administration of justice. I am not persuaded that the discretion was exercised wrongly. As previously stated the witness for the state testified that the appellant’s mother Florida Kauluma resides in Angola. The appellant on the other hand said his mother is deceased, however he again changed his version to say that his mother is Theresia Nambala, but who turned out to be the appellant’s sister. This may very well bring the credibility of the appellant into question as it would appear that appellant deliberately tried to hide his place of origin. This must have a bearing on the question whether appellant will stand trial before a court of law. I am of the opinion that the magistrate did not misdirect herself in finding that it would not be in the interest of the administration of justice to release the Appellant on bail.

[33] In the result:

The appeal is dismissed.

______________________

SHIVUTE, AJ

I agree

________________________

LIEBENBERG, AJ

COUNSEL ON BEHALF OF THE APPELLANT:

Ms. F Kishi

Instructed by: Kishi Legal Practitioners

COUNSEL ON BEHALF OF THE RESPONDENT:

Adv. R Shileka

Instructed by: Office of the Prosecutor-General.