REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI
BAIL APPLICATION JUDGMENT
Case no CC14/2012
In the matter between:
SHIHEPO ONESMUS APPLICANT
and
THE STATE RESPONDENT
Neutral citation: Onesmus v The State (CC 14/2012) 2016 NAHCND 20
(10 MARCH 2016)
Heard: 23-24/02/2016
Delivered:10/03/2016
Flynote:Criminal procedure —Bail ―Applicant indicted with another accused who caused the finalization of the trial ― Proved that he will stand trial- Will not interfere with witnesses ― will stand trial ― Not in the just administration of justice to be kept in custody for 4 years and 6 months ― Bail granted.
Summary:Applicant in this matter stands indictedin the High Court Oshakati on 2 (two) counts of Housebreaking with intent to rob and robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, Act 51 of 1977. He is charged with a co-accused who faces the abovementioned counts and additional counts of; (3) contravening section 16 as read with sections 1 and 12 of the Combating of Immoral Practices Act, Act 21 of 1980 and; (4) Contravening section 2(1)(a) as read with sections 1, 2(1), 2(2), 2(3), 3, 4, 5, 6 and 7 of the Combating of Rape Act, Act 8 of 2000. The applicant testified and proved that he will stand his trial and will not interfere with State witnesses. The court found it not in the interest of justice for him to be in custody for 4 years and 6 months trial awaiting where the delay in finalizing the case is as a result of his co-accused.
ORDER
- Bail in the amount of N$1000.00 is granted on conditions;
- The applicant should not interfere with witnesses for the State;
- The applicant must appear in court on the 18th July 2016 and all subsequent days to when the case may be postponed.
- The matter is postponed to 18 July 2016 at 10h00.
BAIL APPLICATION JUDGMENT
JANUARY, J
[1]The applicant in this matter is a 31 year old Namibian male who stands indicted in the High Court Oshakati on 2 (two) counts of Housebreaking with intent to rob and robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, Act 51 of 1977. He is indicted with another accused who faces the abovementioned counts and additional counts of; (3) contravening section 16 as read with sections 1 and 12 of the Combating of Immoral Practices Act, Act 21 of 1980 and; (4) contravening section 2(1)(a) as read with sections 1, 2(1), 2(2), 2(3), 3, 4, 5, 6 and 7 of the Combating of Rape Act, Act 8 of 2000.
[2] The applicant was arrested on 22 August 2011 and although he testified that he attempted previously in the lower court to get bail, it seems that this is his first formal bail application.
[3]It is alleged that the crimes took place on the 22 August 2011 at or near Oshapwa village in the district of Oshakati. The applicant however testified that the crimes allegedly took place at the place of Ilius Nakale which is at Onupandahulo village, about 3 to 4 km from his village. The appellant’s village is about 17 km from Oshakati.
[4]In brief, the charges allege firstly, that the accused did unlawfully and intentionally break and enter the room of Alina Shigwedha with the intent to rob and did then unlawfully and with intention of forcing her into submission assaulted her by squeezing her neck and threatened to kill her and unlawfully and with intent to steal took from her a Nokia cell phone valued at N$500.00 and N$570.00 in cash.
[5]Secondly, the accused did unlawfully and intentionally break and enter Oshapwa Center and Bottle Store owned by Julius Nauyoma Neumbo with the intent to rob and did then unlawfully and with the intention of forcing her into submission assault Alina Shigwedha, a bar attendant at Oshapwa Center and Bottle Store and threatened to kill her and unlawfully and with intent to steal took from her property to the value of N$3131.75. It is further alleged in the summary of substantial facts that the accused force-marched the complainant to the Oshapwa Center and Bottle Store where she was employed. They forced her to open the bar and store room and further robbed her of N$9480.00 in cash in addition to the property of N$3131.75.
[6]It is alleged that on both incidents aggravating circumstances as defined in section 1 of the Criminal Procedure Act, Act 51 of 1977 (the CPA) were present when the offences were committed, whether before, during or after the commission of the offences in that the accused persons wielded dangerous weapons to wit pangas, iron bars and knives and/or threatened to inflict grievous bodily harm to Alina Shigwedha.
[7]The charges are, no doubt, serious and may attract (a) long period(s) of custodial sentence(s) if the applicant is convicted. The applicant conceded to the seriousness of the crimes.
[8]The applicant pleaded guilty on one count of housebreaking with intent to rob and robbery with aggravating circumstances in the section 119 of the CPA proceedings in the lower court but a plea of not guilty was entered in accordance with section 113 of the CPA. He likewise pleaded guilty on both counts in the High Court but the prosecutor did not accept the pleas.
[9]Ms Horn who represented the applicant called him to testify in this court in support of his bail application. He stated that he is 31 years old. He has 4 (four) children, all girls. He inherited a homestead from his grandmother at Oshikwiyu about 17 km from Oshakati. He has livestock in Namibia. The headman in the area threatened to sell this homestead as the fields have not been cultivated in the last 4 years and land taxes have not been paid. The applicant’s parents passed away but he has 5 siblings who are alive. His highest level of education is grade 4. The applicant has never been to another country, more specifically Angola. He does not have a passport and does not own a motor vehicle. He indicated that he will stand his trial and is willing to subject himself to stringent bail conditions. He testified that he pleaded guilty in the lower court because the investigating officer told him to do so in order to go out on bail. He now applies for bail to attend to his homestead, livestock, children and the outstanding land tax. He now has N$500.00 to pay bail but a brother offered to assist with bail money if bail is granted in a higher amount.
[10]Mr. Gaweseb represented the respondent in the matter. He opposed bail on the following grounds;
- The risk of absconding;
- The risk of interfering with State witnesses;
- It is not in the public interest nor will it be in the interest of the administration of justice in terms of The Criminal Procedure Amendment Act, Act 5 of 1991.
[11]The Investigating officer testified in this application in support of the opposition of bail. He is opposing the granting of bail because it will not be in the interest of the administration of justice. Secondly, it is a serious case and the applicant knows the witnesses because of the disclosure of the case docket. He further fears that the applicant may abscond to Angola as it is easy to walk and cross the border as it is only 18 km from applicant’s village. This witness denied that he ever influenced the applicant to plead guilty with a promise to get bail.
[12] The investigating officer could not confirm or deny that the applicant has a homestead, children or siblings. He could also not inform this court if the applicant knows the complainant in the matter. According to him he fears that the applicant may abscond because this is his first formal bail application after having been in custody for 4 years and 6 months. The officer could not dispute that the applicant might have previously attempted to get bail.
[13]It is by now trite law that applicants in bail application bear the onus to prove on a balance of probability that the court should in exercising its discretion admit them to bail. I agree with Hoff J where he stated in S v Dausab 2011 (1) NR 232 (HC)at p234 J to p235 C;
[12] The Namibian Constitution does not in the chapter under 'Fundamental Human Rights and Freedoms' (Ch 3) specifically refer to a right to be released on bail but it does provide for the right to a fair trial, the protection of liberty and reinforces the presumption of innocence.
[13] In S v Botha, case No CA 70/95, an unreported judgment by the High Court of Namibia delivered on 20 October 1995, O'Linn J first dealt with the nature of a bail enquiry where the role of the court as administrator of justice was stressed, stating that the court should play a more 'activist' and/or inquisitorial role and then at 10 – 11 said the following regarding bail applications:
'It is obvious that the applicant should first move the application and the State then indicate its attitude. This may be the stage to indicate which relevant facts, if any, are common cause. There are not and should not be, any hard and fast rules who should first lead viva voce evidence, if any. The aforesaid notwithstanding, onus to show that he or she is entitled to bail remains on the applicant.'
[14] My experience is that in practice the duty to lead evidence first in bail applications usually rests on the applicant.
[15] In Namibian courts of law the approach that the onus of proof is upon the applicant to prove that bail should be granted is still the applied norm. See S v Du Plessis and another 1992 NR 74 (HC); and S v Fouche case No CA 20/1993, an unreported judgment of this court delivered on 17 August 1993.
[14] In the normal course of events this onus is usually discharged when the applicant shows to the court that the interest of justice will not be prejudiced by releasing him on bail that it is likely that he will stand his trial and that he will not interfere with State witnesses or the investigation of the case against him. These are not a numerous clauses of what should be considered in bail applications.[1]
[15]The applicant impressed me as an honest and credible witness. He conceded that he pleaded guilty in the lower court with the hope that bail would be granted to him as he was allegedly foretold by the investigating officer. The investigating officer denied this. The applicant conceded that his plea of guilty in the lower court was not the truth. I however warn myself that “falsehood in one thing does not mean falsehood in everything” (falsus in uno non falsus in omnibus).
[16]In my view, the applicant proved on a balance of probability that he will stand his trial and that he will not and cannot interfere with State witnesses. I do not find thatis in the interest of justice for him being trail awaiting for 4 years and 6 months in the circumstances where it is his co-accused who is causing the delay in the finalization of the case. This court is in possession of letters indicating that the co-accused had thus far about 5 legal aid appointed lawyers but is still without a lawyer. All appointed lawyers withdrew and the Directorate Legal Aid closed the co-accused’s file and will not appoint another lawyer. The investigation in all probability must have been finalized at this stage.
[17] In the result the following order is made;
- Bail in the amount of N$1000.00 is granted on conditions;
- The applicant should not interfere with witnesses for the State;
- The applicant must appear in court on the 18th July 2016 and all subsequent days to when the case may be postponed.
- The matter is postponed to 18 July 2016 at 10h00.
______
HC January
Judge
Appearance
For the Applicant Ms Horn
Of Horn Attorney [instructed by Legal Aid]
For the Respondent:Mr Gaweseb
Of Prosecutor General Office Oshakati
1
[1]See: S v Acheson 1991 [2} SA 805 NLR