1
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: CA 47/2014
In the matter between:
THE STATEAPPELLANT
and
ADRIAAN PIENAAR RESPONDENT
Neutral citation:S v Adriaan Pienaar(CA 47/2014) [2014] NAHCM 218(16 July 2014)
Coram:UNENGU AJ
Heard: 30 June 2014
Delivered:16 July 2014
Flynote:Criminal Procedure – Appeal against magisrate’s refusal of bail in terms of section 65 of Act 51 of 1977 – magistrate exercising her discretion not to grant bail – Court refused to interfere with decision of magistrate to refuse bail.
Summary:The appellant has appealed against the decision of the magistrate to refuse bail in terms of section 65 of the Criminal Procedure Act 51 of 1977. In appeal, the Court refused to interfere with the ruling of the magistrate and the appeal therefore isdismissed.
REASONS FOR JUDGMENT
UNENGU AJ:
[1] The appellant is charged with an offence of contravening section 50 of the Immigration Control Act of 1993[1]i.e entering into Namibia without written permission of the Minister.
[2] On the 14 November 2013, the appellant represented by Mr Uirab from the directorate of Legal Aid in the Ministry of Justice, applied to be released on bail pending the outcome of the case against him. This happened before a magistrate sitting at the Keetmanshoop Magistrates’ Court.
[3] The magistrate, after hearing evidence from the appellant and from witnesses called by the respondent, in her written ruling delivered on 5 December 2013, refused to grantbail and postponed the matter with the appellant in custody.
[4] The appellant is now appealing against the refusal of the magistrate to grant him bail. The appeal was set down for hearing on 30 June 2014 at 09h00. However, due to some delays for bringing the appellant on time to Court from the Hardap Prison, where he is kept; the appeal was heard from 14h20.
[5] The appellant acted in person while the respondent was represented by Ms Meyer from the Office of the Prosecutor-General. Both the appellant, Mr Pienaar and Ms Meyer prepared written heads of argument which they amplified with oral submissions. This, they did extensively I must say, the appellant in particular.
[6] After submissions I dismissed the appeal and indicated that my reasons would follow in due course. Hereunder, are my reasons for the dismissal of the appeal.Before I do so, first the background facts preceding the appeal.
[7] In his testimony before the magistrate, Mr Pienaar, amongst others, testified that he was 52 years old, born in Victoria, South Africa and a South African national. Married with one child with his wife but separated from each other for a long time, almost 12 years now. He said that the wife stays in Cape Town with their daughter who is aged between 10-12 years old. Appellant has no intention of reuniting with his wife in Cape Town, South Africa.
[8] The appellant testified further that both his parents are deceased but has a brother who stays six months in South Africa and six months in the United Emirates. He said that he has an Oshiwambo speaking girlfriend by the name of DortheaOshivelo Oshilikomwenyowho resides at erf 3252 Ernin Street, Greenwell in Windhoek.
[9] Further, Mr Pienaar testified that he has an Investment CC in Namibia which he wished to run together with the girlfriend. However, he does not have fixed properties in South-Africa as these properties in South –Africa are in the possession of his wife. Apart from a car, he also does not have any fixed properties in Namibia, he said.
[10] Mr Pienaaralso told the Court a quo about his heart condition for which Psychologists recommended him to be granted bail. He said that he will not interfere with the investigations or witnesses. He will plead not guilty to charge against him because he was not declared a prohibited immigrant, therefore will not abscond.
[11] He testified further, that he was never found guilty of an offence in Namibia therefore, does not have previous convictions but conceded that there were two cases pending against him. One in the Regional Court sitting at Mariental and the other in the Regional Court in Windhoek Mungunda Street, Katutura. The appellant emphasized that he will not abscond if granted bail, that he was innocent and will not commit further offences while on bail. He then asked the court to grant him bail of between N$500-00 and N$1000-00.
[12] In cross-examination by the State, the appellant indicated that he is charged with eleven counts of fraud in the Mariental Regional Court alone, emanating from different towns in Namibia. After the lengthy cross-examination by the public prosecutor, the appellant closed his case, whereafter the respondent led evidence of Sheehama and detective Inspector Kotungondo who testified that he was a Commander of Serious Crime Unit in Keetmanshoop with 19 years of experience as a Police Officer. Inspector Kotungondo further testified that he was objecting to the granting of bail as it was not in the interests of justice and the public. According to the Inspector, the appellant was a prohibited immigrant in Namibia who was deported from the country after being declared persona non grata in 1996. He said, the appellant is also wanted in South Africa on a warrant of arrest issued against him and there were altogether 44 counts of fraud and forgery against him for which he has to appear in the Regional Court at Mariental. The Inspecto,after elaborating on the counts the appellant is facing, said that if released on bail, the appellant will abscond because, he did not own any fixed assets in Namibia, is unemployed, not married to a Namibian, has no family in Namibia and did not have any means to support himself while on bail. In conclusion, the Inspector expressed a belief that the appellant could be a flight risk as the respondent has a strong case against him; and that some of the offences against him were committed while another case was pending against him in Windhoek.
[13] The witness was cross-examined by Mr Uirab, acting for the appellant. He was cross-examined at length but stood his ground. Witness Sheehama’s testimony was more about the deportation of the appellant in 1996. After arguments on behalf of the appellant and the respondent, the magistrate postponed the application for her ruling. On the 5 December 2013 she delivered her judgment in which she refused to grant bail.
[14] Among the reasons for the refusal of bail, the magistrate emphasized the seriousness of the offence the appellant was charged with, namely, entering Namibia after an order of being declared a prohibited immigrant; the prima facie case against the appellant, the risk of absconding and the fear of committing further offences while on bail.
[15] As already indicated above, the appellant is prosecuting the appeal on his own-resulting in the grounds upon which the appeal is based not clearly and specifically set out in the handwritten paper purported to be a Notice of appeal. One has to scan for a possible ground from the paper. The only possible ground I could gather from the document, titled “Additional grounds of Appeal,” is contained in paragraph 6, which reads as follow: verbatim: “The magistrate ruling contradict the facts and law before court, and she seriously misdirect herself when she ruled that the applicant will commit further offences if released on bail’.
[16]Even though the appellant was provided with a copy of the ruling by the magistrate which ruling set out the grounds upon which she relied in refusing bail, the appellant grossly neglected to address such grounds in his notice of appeal. A failure to set out grounds clearly and specifically is fatal and the appeal cannot succeed as a result.
[17] Meanwhile Ms Meyer, counsel for the respondent, in her main heads set out the law applicable to appeals in terms of section 65 of the Criminal Procedure Act 1977[2]. (The CPA). Section 65 deals with appeals to superior courts with regard to bail. Subsection (4) thereof provides that the court or judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such court or judge is satisfied that the decision is wrong, in which event the court or judge shall give their decision which in its or his opinion the lower court should have given. (See also S v Barber 1979 (4) (SA) 218 (SWA) at 220E-H, cited by Ms Meyer in her written heads of argument andS v Timotheus 1995 NR 109 (HC)
[18] The appellant in the instant matter did not persuade the Court that the magistrate exercised her discretion wrongly inrefusing him bail. In that event, this Court cannot interfere with the magistrate’s exercise of her discretion. In the exercise of her discretion against the granting of bail, the magistrate considered the prima facie case against the appellant, the risk that the appellant will abscond to South Africa, his native country to avoid a trial and subsequently a conviction or possible conviction on the 44 counts of fraud, the appellant is facing in the Regional Court at Mariental and in Windhoek; the risk of committing further offences and the fact that he does not have a legal status to stay in the country. All these factors coupled with the fact that the appellant has no assets, be it movable or immovable in Namibia to keep him in the country, in my view are real, reasonable and good grounds to persuade the magistrate torefuse bail for the sake of the interests of justice.
[21] That being the case, and for reasons and conclusion set out herein before, the decision of the magistrate to refuse bail cannot be interfered with. Therefore, I confirm the order made on 30 June 2014 when the appeal was dismissed.
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PE Unengu
Acting
APPEARANCE:
For appellant: Ms Meyer
Office of the Government Attorney
For respondent:In Person
[1] Act 7 of 1993 (the Act)
[2] Act 51 of 1977