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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 settlemen
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