SUMMARY REPORTABLE

CASE NO. : CC 12/2005

THE STATE v HEINZ DRESSELHAUS & OTHERS

In re James William Camm v The State and others

PARKER, J

2009 June 23

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Constitutional law - Human rights – Right of accused to trial within a reasonable time in terms of Article 12 (l)(a) and (b) of the Namibian Constitution – Court finding periods during which police investigations were taking place and the Prosecutor General was considering whether to prosecute applicant do not count in the application of reasonable time contemplated in Article 12 (l) (a) and (b) of the Constitution – Court considering factors that ought to be taken into account in determining whether there has been a failure of trial within a reasonable time – Most important factor being significant prejudice suffered by accused and any such prejudice must be irreparable trial-related prejudice – Court finding prejudice suffered by accused not the kind of prejudice that would justify the remedy of a permanent stay of prosecution, and besides, no extraordinary circumstances exist to justify that remedy.

Held, Only the period of a trial before an independent, impartial and competent Court or Tribunal ought to be taken into account in the application of reasonable time frame under Article 12 (1) (a) and (b) of the Namibian Constitution.

Held further, The remedy of permanent stay of prosecution being a radical and far-reaching remedy ought to be seldom granted and for compelling reasons, particularly applicant must establish he or she has suffered irreparable trial-related prejudice or must prove that extraordinary circumstances exist to justify grant of the remedy.

REPORTABLE

CASE NO. CC 12/2005

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

HEINZ DRESSELHAUS ACCUSED 1

ETTIENNE JOHAN WEAKLEY ACCUSED 2

JAMES WILLIAM CAMM ACCUSED 3

In the application of:

JAMES WILLIAM CAMM APPLICANT

and

THE STATE FIRST RESPONDENT

ETTIENNE JOHAN WEAKLEY SECOND RESPONDENT

HEINZ DRESSELHAUS THIRD RESPODENT

CORAM: Parker, J

Heard on: 2009 June 11

Delivered on: 2009 June 23

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JUDGMENT

PARKER, J.:

[1] In this matter, the applicant has brought an application on Notice of Motion, moving the Court to grant an order in the following terms:

1. An order releasing the Applicant in terms of Article 12(1)(a) and 12(1)(b) read with Articles 25(2) and Article 5 of the Constitution of the Republic of Namibia by permanently staying the prosecution of the applicant in the matter before this Honourable Court under Case No CC 12/2005;

2. Further and/or alternative relief.

[2] Mr. Vaatz represents the applicant and Mr. Small represents the 1^st respondent (hereinafter referred to simply as the respondent, seeing that the 2^nd and 3^rd respondents have not opposed the application).

[3] The following brief facts will in a nutshell put the application in its proper perspective. The applicant is the 3^rd accused, the 2^nd respondent is the 2^nd accused, and the 3^rd respondent is the 1^st accused in an ongoing criminal trial in which the three are charged on the basis of common purpose with 30 main counts, including fraud, theft, corruption and contravention of s 2 (a) and s 2 (b) of Ordinance 2 of 1928, together with various first, second and further alternative counts. The applicant has pleaded not guilty to all the counts.

[4] The present application concerns primarily paragraphs (a) and (b) of sub-article (1) of Article 12 of the Namibian Constitution. As the title of Article 12 indicates the Article guarantees the right to fair trial. Article 12 (1) provides:

1. In the determination of their civil rights and obligations or any criminal charges against them, all persons shall be entitled to a fair and public hearing by an independent, impartial and competent Court or Tribunal established by law: provided that such Court or Tribunal may exclude the press and/or the public from all or any part of the trial for reasons of morals, the public order or national security, as is necessary in a democratic society.

2. A trial referred to in Sub-Article (a) hereof shall take place within a reasonable time, failing which the accused shall be released.

[5] Accordingly, the question that arises for determination relates to the interpretation and application of the clauses (1) ‘a trial shall take place within a reasonable time’, and (2) ‘failing which the accused shall be released’; and the critical question is this: has the trial of the applicant failed to take place within ‘a reasonable time’?

[6] In this regard, it is significant that in interpreting the aforementioned crucial clauses in the formulation of the above-quoted provision of the Namibian Constitution, I must keep in my mental spectacle the Namibian formulation of the provision, as Mr. Small urged the Court to do. I readily accept Mr. Small’s submission. As I said in African Personnel Services (Pty) Ltd v Government of Namibia and others Case No.: A 13/2009 (Unreported) at p 72 when interpreting and applying certain provisions of the Namibian Constitution,

[I]n all this, it is my view that in the end it is the Namibian Constitution that is to be interpreted and applied, and the provisions of our Constitution can never be overridden by extraneous principles of other Constitutions which are not explicitly incorporated in the formulas and constitutional principles that underpin the frame of our Constitution.

Of course, this does not mean that in interpreting and applying the words in the Namibian Constitution this Court is not entitled to seek assistance in the way similar provisions in other national Constitutions and international human rights instruments have been interpreted and applied by higher or comparable superior national courts and international courts.

[7] In Pieter Johan Myburg v The State Case No.: SA 21/2001 (Unreported), after undertaking a detailed and insightful analysis of the interpretation of ‘shall be released’, O’Linn, AJA laid down at p 51 ‘the legitimate forms meeting the peremptory requirement’, the last form being a ‘permanent stay of prosecution, either before or subsequent to a plea on the merits.’ In the Notice of Motion, the remedy that the applicant has applied for is this form, sc. a permanent stay of prosecution. In this regard, it has been said authoritatively that since the order for a permanent stay of prosecution is an extreme, radical and exceptional remedy, ‘the Court will be inclined in its interpretation of the provision establishing the right and its breach, to impose a greater and more onerous burden on the applicant to establish a breach than would be the case if the words “shall be released” are interpreted as merely mandating a release from custody.’ (per O’Linn, AJA, in Myburg supra at p 15) Furthermore, at p 52 of Myburg, O’Linn, AJA emphasized the point 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.’

[8] On the issue of forms of prejudice that an accused can potentially suffer for want of a speedy trial, I cannot do better than to repeat what was said in S v Jackson and others 2008 (2) SACR 274 (C), namely that the courts have recognized three forms of prejudice that an accused can potentially suffer for want of a speedy trial: (1) loss of personal liberty resulting from detention or restrictive bail conditions, (2) the impairment of personal security resulting from loss of reputation, social ostracism, loss of employment or income, and (3) trial-related prejudice, such as witnesses becoming unavailable, disappearing or dying, or memories of witnesses fading because of the passage of time.

[9] It has also been said that the relief is likely to be available only in a narrow range of circumstances, e.g. where it is established that the accused has probably suffered irreparable trial prejudice as a result of the delay. (Zanner v Director of Public Prosecutions, Johannesburg 2006 (2) SACR 45 (SCA); Myburg supra)

[10] It behoves me to approach the determination of the present application in the manner of the principles enunciated in the aforementioned authorities. Thus, it remains to apply those principles to the facts of this particular case.

[11] The applicant’s application for a permanent stay of prosecution is based on the main grounds as appear in the applicant’s counsel’s heads of argument that are a distillation of statements set out by the applicant in his affidavits, namely,

(1) The applicant is ‘innocent until proven guilty’.

(2) After 20 days of adducing of evidence by the State, no single corroborative evidence has linked the applicant to the crime of bribery.

(3) No documentary evidence admitted in the evidence received so far shows that the applicant benefited financially from the alleged criminal scheme.

(4) Not a single cheque or payment has been produced during the trial (so far) as evidence linking the applicant to receiving of a bribe or commission in terms of the criminal enterprise involved in the aforementioned criminal case.

(5) The facts of the criminal case relating to incidents that occurred in 1998-2001 were known by Telecom (the complainant in the ongoing criminal trial) in the beginning of 2002 and to institute criminal proceedings against the applicant only three years thereafter is unfair.

(6) Joining the applicant with his two alleged confederates in the alleged crimes is unfair because the alleged bribes were paid only to Mr. Ganes (a prosecution witness in the criminal trial), and Mr. Ganes did not in turn pay any amounts to the applicant.

(7) The applicant does not know what case he has to meet in the criminal trial.

(8) Counts 1-23, 26, and 27 relate to crimes committed in terms of s 2 (a), (b) or (c) of Ordinance 2 of 1928, but the ‘State knows that the applicant cannot be guilty of a charge under the said s 2 (b)’.

(9) The trial is unfair to the applicant because of ‘continuous long postponements, sometimes announced two or three days before the hearing’.

(10) The Directorate of Legal Aid in the Ministry of Justice ‘has also thus far not paid anything’; and the postponements with their cost implications make it impossible for the applicant to employ the kind of experience and legal counsel he would require for a case of this nature’.

(11) The State has not produced the documents and witness statements requested and promised by the State on repeated occasions, including the transcript of the hard drive of Mr. Ganes’s computer.

(12) Mr. Ganes is the main culprit in connection with the copper sales; and he prepared the allegedly fraudulent and wrong invoices without ever first showing or discussing them with the applicant.

(13) In none of Mr. Ganes’s statements or evidence made before September 2004 (in the South African superior courts) did he implicate or mention the applicant as a ‘benefiting participant’ of the copper sales scheme he conducted with Dresselhous Scrap (the close corporation whose members are the 2^nd and 3^rd respondents).

(14) Mr. Ganes entered into agreement with Telecom whereby in return for ‘a number of financial and other benefits’, Mr. Ganes agreed to disclose to Telecom names of Telecom employees who allegedly participated in the criminal copper scheme or any other scheme; and the ‘only’ name he then disclosed was that of ‘the applicant’; and this was after Mr. Ganes had in affidavits filed of record in proceedings in South African superior courts persistently stated that ‘no other persons were involved in any alleged scam’.

[12] I find that the applicant’s appearance in the magistrate’s court in July 2005 constituted the commencement of his trial within the meaning of Article 12 (1) (a) of the Namibian Constitution; and so what happened or did not happen, including during the period of police investigations and the period during which the Prosecutor-General was considering whether or not to prosecute, prior to the critical date does not count in the application of the time frame envisaged by the above quoted Article 12 (1) (a) and (b) of the Namibian Constitution: these processes were not hearings before an independent, impartial and competent Court.

[13] I also find that in the close to four years from the critical date to the date of the bringing of the present application, the applicant has suffered social prejudice; and he avers that in terms of employment, he is unable to get employment while the case is pending. I do not see on the papers what the applicant’s academic qualifications are or what his profession is, and so I am unable to determine judicially whether the applicant has been unable to get employment solely because of the ongoing trial or because the kind of academic qualifications he possesses and the nature of his profession, if any, are such that they are not easily and readily marketable in Namibia of today or are such that becoming self-employed is also not a viable option in Namibia today. Be that as it may, serious social embarrassment or even ostracism is inevitable in virtue of the very nature of the charges the applicant is facing in the criminal trial; but these do not constitute extraordinary circumstances. Besides, granted, such factors may be relevant in assessing any prejudice suffered by the applicant generally; but the object of the assessment of prejudice to the applicant now under consideration and relevant to the present enquiry is not the general and usual disadvantages suffered by an accused person facing serious criminal charges. (See Saunderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC).) The nature of prejudice that is capable of answering to a consideration of whether to grant a permanent stay of prosecution must be, as Mr. Small correctly submitted, ‘trial prejudice’ (Saunderson supra at 59F) or, more appropriately, ‘irreparable trial prejudice’ (Myburg supra at p 52).

[14] Furthermore, looking at the 14 items adumbrated previously which, as I say, are distilled from the applicant’s affidavits, I have no doubt in my mind that all the items, apart from two (i.e. items (9) and (10)) relate to what the applicant subjectively considers to be insufficient, or lack of, evidence linking him to the charges preferred against him; or what he considers to be irregularities. In my opinion, it is too early in the day to judicially consider the totality of the evidence and come to any reasonable and fair conclusion when the Prosecution has not closed its case. In any case, I hold that the aforementioned matters in all the items (apart from items (9) and (10)) cannot on the authorities constitute irreparable trial-related prejudice required for the grant of the remedy of a permanent stay of prosecution.

[15] The applicant says that there has been ‘continuous long postponements’. In determining the applicant’s contention, it would be efficacious to set out a brief history respecting the criminal trial so far. From the papers I find the following facts to exist: In September 2005 the 3^rd respondent and the applicant appeared in pre-trial proceedings in the High Court and were joined as co-accused with the 2^nd respondent. The matter was postponed to 17 November 2005 in order for the State to effectuate a full disclosure to the accused, involving disclosing colossal volumes of documents. After this full disclosure and while the matter was on pre-trial, the applicant’s legal representatives filed a request for further particulars running into about 52 pages. The State provided those particulars, as required by law. But the applicant was not satisfied and so he brought an application to compel the State to provide ‘more’ further particulars. The application was opposed and argued on 18 May 2006; whereupon on 14 June 2006 the Court dismissed the application.

[16] On 14 July 2006 the trial was set down for 16 May 2007-15 June 2007. In early April 2007, the legal representatives of the 2^nd and 3^rd respondents enquired whether the matter could not be postponed by agreement on 16 May 2007 because they wanted to peruse boxes of documents that were delivered to the State by the Namibian Police. These documents were not used in the decision to prosecute the accused, but as they might have been important to the two respondents, the existence thereof was disclosed to the defence and the legal representatives were given the opportunity to peruse the documents and to copy at the expense of the State whatever documents they were interested in. Thereafter, by agreement between the parties on 19 April 2007 the trial was set down for 17-28 September 2007. Some time before 17 September 2007 it was realized by the parties that the time allocated for the trial was too short and that the matter would not be finalized in the time allotted for it. Thus, to have commenced the trial at that stage was going to be purposeless; it would have meant that at the end of it the matter would partly be heard and would have had to be postponed for further trial dates to be obtained from the Registrar. On 17 September 2007, as agreed before, the matter was postponed to the trial dates of 28 January-29 February 2008: those were the only available dates convenient to the parties, considering that one full, unbroken month was required for the trial.

[17] The trial commenced on 28 January 2008 and continued until 22 February 2008. At that stage the evidence of two State witnesses, Mr. P. M. Cromhout and Mr. G. Hancke was led . Mr. Ganes gave evidence and was cross-examined by counsel on behalf of the 2^nd and 3^rd respondents. Counsel’s cross examination thus far was long and protracted, taking some 10 days. Indeed when the trial came to a halt – not conclusion – Mr. Ganes was still under cross-examination by counsel; indeed, counsel of the 2^nd and 3^rd respondents required other original documentation before bringing his cross-examination to a close. The legal representatives of the applicant have not yet cross-examined Mr. Ganes.

[18] I gather from Mr. Small’s affidavit that from the evidence led so far, the indictment and the list of witnesses, the State still has more numerous witnesses to call. In my opinion to say that the case is complicated and involves volumes and more volumes of documents is an understatement. Additionally, there are three accused persons and two legal counsel involved; there are 30 counts, accompanied by alternative and further alternative counts.

[19] On 22 February 2008 the matter was postponed to 6 October 2008 due to a congested High Court roll; and that was the nearest available date that suited all counsel. It was contemplated that the matter would run from 6 October 2008 to 31 October 2008. In the nature of the High Court roll, it is not at all easy to find trial dates that would run continuously for one month; and that is not the fault of the State (qua a party to the criminal proceedings).

[20] I have taken some time to set out the aforegoing facts for a good reason. It is to press home a significant point: in considering whether there has been unreasonable delay in bringing the trial to a close – and I stress the word ‘unreasonable’ – regard should be had to all the circumstances of the particular case. In the instant case, I do not find it established that the delays have not been occasioned by factors inherent in the exigencies and the particular circumstances of the case. (See S v Heidenreich 1996 (2) SACR 171 (Nm); The State v Strowitzki and another 1995 (1) B CLR 12 (Nm).) In interpreting the phrase ‘within a reasonable time’ in a right to fair trial provision in the Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights stated that the question whether the length of criminal proceedings exceeded the limits of a reasonable time has to be decided in relation to the particular circumstances of the proceedings concerned, and in particular with regard to: (1) the complexity of the case as a whole, (2) the manner in which the case has been handled by the prosecuting authority and the courts and (3) the accused’s own conduct. In this regard, it must be remembered that only a delay attributable to the State (represented by the prosecuting authority) as a party to the criminal proceedings which can justify a finding of a violation of the ‘reasonable time’ requirement. (Paul Sieghart, The International Law of Human Rights (1995): pp 281-3; and the cases three cited) In the instant case, as I have said previously, the case is complex. The prosecuting authority alone is not responsible for any delays in bringing this case to a conclusion. The conduct of the applicant has in a way contributed to the length of time in bringing the trial to a conclusion; take for instance the applicant’s persistent application for further particulars which was dismissed by the Court. Additionally, the postponements were agreed by the applicant: he was legally represented and I did not hear any application that was vigorously pursued to oppose the postponement. (See Saunderson supra.)

[21] Weighing all the aforementioned factors against the facts of this case and in the light of the aforegoing principles enunciated in the authorities, I have come to the irrefragable conclusion that the applicant has not made out a case for the grant of the remedy of a permanent stay of prosecution. Accordingly, the application is dismissed.

_______________________

Parker, J

ON BEHALF OF THE APPLICANT: Mr A Vaatz

Instructed by: Andreas Vaatz & Partners

ON BEHALF OF THE 1^ST RESPONDENT: Adv D Small

Instructed by: The Prosecutor-General