[6]
After the State had closed its case, the magistrate explained to the appellant his rights, inter alia, his right to testify and call witnesses. The appellant, then, informed the court that he would testify on oath and call witnesses.
Upon enquiry by the magistrate, the appellant informed the regional court that he would call witnesses, some of who were State witnesses
but whom, according to him, “the investigating officer left out.” I take this to mean that there were some witnesses
who were on the list of witnesses to be called by the State, but whom the State did not call. I hasten to note that there was nothing
amiss for the appellant expressing the desire to call State witnesses because in judicial proceedings, no one party has property
in a witness. Besides, the appellant further informed the court that he was unable to pay the necessary costs and fees involved in
securing the attendance of the witnesses. The appellant, therefore, requested the regional court’s assistance in this regard.
The appellant particularly wanted to call a Ribbenaar, one Johnny Kaiser, a Mr Boelie Burger, someone from the Continental Hotel
whose name he did know, a Pieta, the boss of Veronika, Constable Kalunga and the appellant’s wife.
[7]
A provision concerning the process of securing attendance to this appeal and the circumstances of
the appellant is in s. 179 (3) of the CPA. The subsection provides:
(3)
(a)
Where an accused desires to have any witness subpoenaed and he
satisfies the prescribed officer of the court –
(i)
that he is unable to pay the necessary costs and fees; and
(ii)
that such witness is necessary and material for his defence, such officer shall subpoena such witness.
(b)
In any case where the prescribed officer of the court is not so satisfied, he shall, upon the request
of the accused, refer the relevant application to the judge or judicial officer presiding over the court, who may grant or refuse
the application or defer his decision until he has heard other evidence in the case.
In my view, the provision in the CPA has found powerful expression in art. 12 (1) (d) and (e) of the Namibian Constitution. Paragraph
(d) provides: “All persons charged with an offence shall be presumed innocent until proven guilty according to law, after having
had the opportunity of calling witnesses and cross-examining those called against them.” And paragraph (e) provides “All
persons shall be afforded adequate time and facilities for the preparation and presentation of their defence, before the commencement
of and during their trial, and shall be entitled to be defended by a legal practitioner of their choice.”
[8]
In terms of s. 179 (3) of the CPA, the State must assist an accused, who is unable for financial
reasons to secure the attendance of any witness, in securing the attendance of such witness, so long as the witness is necessary
and material to the accused’s defence. The constitutional provisions referred to above are also cast in peremptory terms, and
the provisions are a part of those constitutional stipulations that are non-derogable.
[9]
What this means is that under the CPA, so long as the requirements of necessity and materiality
are satisfied, the clerk of court, in the case of a magistrate’s court, has no discretion in the matter. But, in practical
terms the judicial officer may investigate the situation and surrounding circumstances to determine whether the witness is necessary
and material for the accused’s defence. Be that as it may, in my view, the little leeway that a court may have under the CPA
has been whittled away by the peremptory and non-derogable provisions of the aforementioned paragraphs (d) and (e) of art. 12 (1)
of the Namibian Constitution. The upshot of this is that an accused’s right to call witnesses has been constitutionalized by
the said art. 12 (1) (d) and (e). Consequently, the CPA provisions must pay obeisance to the constitutional provisions that are part
of the rubric of constitutional fair trial stipulations under the Namibian Constitution.
[10]
From the foregoing, it is my view that a court will be stifling the accused’s right that the Constitution
guarantees to him or her under art. 12 (1) (d) and (e), if the court purported to decide for the accused what witnesses he or she
must call. I am fortified in my view by the apt statement by Hannah, J in Johannes Shitaleni v The State, namely, that “[I]t is not for a judicial officer to decide whether an accused should or should not call a witness.” If a judicial officer has the power to decide for the accused, then the provisions of art. 12 (1) (d) and (e) would be rendered futile
and otiose. Of course, there may be circumstances in which an accused may forfeit his or her right to call witnesses. Therefore, in order not to forfeit his or her right to call witnesses, the accused, for example, “must make some plausible
showing of how their (i.e. the witnesses’) testimony would have been both material and favourable to his defence.”
[11]
In this connection, S v Selemana is pertinent and apposite to this appeal and the issue being examined. Franklin, J stated succinctly:
A magistrate must be exceptionally careful when refusing to allow an accused to call a witness. In particular, when the accused is
unrepresented, the magistrate, before refusing such a request, should make certain that such a witness cannot possibly give relevant
evidence. If the court is not careful to observe this obligation, a miscarriage of justice may result: S v Tembani, 1970 (4) S.A. 395 (E).
[12]
I will now apply the principles discussed above to the present case. As I have stated previously, the
appellant, who was unrepresented, informed the learned magistrate that he wished to call several witnesses; he identified the witness
and stated the nature of their testimony. But the magistrate shot his request down with the inept reason that having heard the appellant’s
evidence in-chief and the evidence of the State witnesses, he was of the opinion that to call the appellant’s witnesses would
“be a sheer waste of the money fro (sic) the State, to make an order that this Ribbenaar and Kaiser and others should come to stand before this Court and give evidence when
there is already evidence which this Court can consider.” But, the Constitution gives the appellant the right to call witnesses
in his defence, and the magistrate did not consider whether or not the evidence of the witnesses would be necessary, material and
favourable to the appellant’s defence. As Mr Dos Santos correctly submitted, the magistrate had prejudged the issue in denying
the appellant his right to call witnesses.
[13]
The appellant had indicated to the court that Ribbenaar and Johnny Kaiser would testify as to ”whether
I went to them or they are the ones who took me.” And in a response to a question posed by the magistrate, the appellant replied
that Ribbenaar was the owner of the house where he was found. Surely, the evidence of these two witnesses was supremely crucial to
determining an important part of the appellant’s defence which he maintained throughout the trial, namely, that he was taken
at gunpoint from Oshakati and driven to Windhoek and kept in a house against his will until he was found by the Police.
[14]
Besides, the appellant informed the court, upon enquiry from the magistrate, that Mr Boelie Burger was
going to give evidence about the appellant’s authority and discretion respecting his official duties at Coin Security and the
use of the official company motor vehicle. The witness from the Continental Hotel, too, was to be called to testify that the appellant
was not at his hotel, and he did not give anybody “false money.”
[15]
It is quite clear to me that the evidence of all those witnesses whom the appellant wished to call was
both material and favourable to the appellant’s defence.
[16]
In my view, the above-quoted constitutional provisions in art. 12 (1) (d) and (e) are undoubtedly anchored
in the “principle of elementary justice.” By denying the appellant the opportunity, and the facility with which, to call the witnesses, the magistrate acted in breach of the
principle of elementary justice; a fortiori, he acted in violation of the Namibian Constitution, especially when the appellant did make some plausible showing of how the evidence
of the witnesses he wanted to call was material and favourable to his defence.
[17]
Mr. Dos Santos has submitted that in the circumstances, a gross irregularity occurred in the proceedings
justifying the setting aside of the conviction and sentence. Indeed, Mr. Truter made common cause with Mr. Dos Santos in respect
of the submission. Mr. Truter agreed that the refusal of the magistrate to allow the appellant to call witnesses was an irregularity
and it was prejudicial to the appellant’s defence. I agree with both counsel. In the result, I conclude that the magistrate’s
refusal was unfair and offensive of art. 12 (1) (d) and (e) of the Namibian Constitution, which guarantees fair trial.
[18]
For the reasons given above, the proceedings in the court a quo, in my opinion, were tainted with gross irregularity, resulting in an unfair trial of the appellant and, therefore, unmistakably
pointing to a failure of justice.
[19]
Having so concluded, I do not think there is any need to examine the other grounds of appeal.
[20]
That being the case, the appeal succeeds. Both the conviction and sentence are set aside.
_________
Parker, AJ
ON BEHALF OF THE APPELLANT:
Mr A I Dos Santos
as Amicus Curiae
ON BEHALF OF THE STATE:
Mr J A Truter
Instructed by:
The Office of the
Prosecutor-General
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