CASE NO.: CC23/2008

IN THE HIGH COURT OF NAMIBIA

NATANGWE IIPINGE NGATJIZEKO					APPLICANT

Versus
THE STATE									RESPONDENT

Delivered on:        	28 January 2011

JUDGMENT - BAIL APPLICATION:

[2] The accused was arrested on 19 December 2006 and has been in custody since. His trial had commenced before me and could not be finalized and has been postponed to 9 - 13 May 2011. He has been in custody for almost 4 years now. At the commencement of the trial, the accused pleaded not guilty and the basis of his defence was that "at the time he committed the crimes, he was suffering from a mental defect caused by many years of substance abuse more particular marijuana and that he was psychotic when he committed the offences."

[3] The accused applied to this Court to be released on bail. Mr. Wessels appears on behalf of the accused. The State, represented by Ms. Moyo, opposed the application for bail on three grounds, namely:

(i)     The fear that the accused is likely to abscond if released on bail pending the finalization of his trial;

[4] The accused testified in support of his bail application. He is 31 years old and a Namibian citizen. His father is Immanuel Ngatjizeko (the Minister of Labour and Social Welfare). In 1980 he went into exile to Angola with his mother. In Angola he was separated from his mother and was raised in a refugee camp. Later his mother left and went to India and he returned to Namibia in September 1990, and stayed with his father and attended People's Primary School in Windhoek. He completed grade 12 at Concordia College, Windhoek. In 1998 he enrolled at the University of Namibia (UNAM) for a Bsc degree, majoring in chemistry and biology. After 2 years of study, he won a scholarship to go to Czech Republic where he enrolled for a degree in economics. He struggled to learn the Czech language and lost interest in his studies. He was kicked out of university and stayed in Prague with his friends. He started drinking and using drugs. He returned to Namibia in 2003 and in the same year enrolled at the Polytechnic of Namibia for a diploma in Media Studies. After 3 months he abandoned his studies. He joined the Namibia Defence Force (NDF) and while in the force he continued using drugs. He was in the NDF for seven months. In 2004 he was arrested for possession of drugs and stood trial at Okahandja magistrate's court. Before the completion of his trial, he absconded and fled to Zimbabwe. In Zimbabwe he was arrested for theft and contravention of the Immigration Act. He spent seven months in custody and in September 2005 he was deported back to Namibia.   In
Namibia he stayed at his father's house and sometimes at his mother's house. In order to maintain and feed his drug habits he stole money from people. In January 2006 he left for Cape Town, and stayed with Rastafarians in Philipi, continued smoking dagga and using drugs. There, in Cape Town, he was arrested and deported in August 2006 back to Namibia. In September he moved to Walvis Bay to look for employment. Continued with his drug habits, got money for his drug addiction from friends and from stealing. He returned to Windhoek around December 2006. He testified that if he is released on bail (admitted to bail) he will not abscond and will be residing at his girlfriend's house (No 160, Theo-Ben Gurirab Street, Walvis Bay). He has no problem to report 2 or 3 times per day to the police station. He further testified that his father is in position to pay bail in the amount of N$10 000,00. He has no passport and no property, either immovable or movable, of his own.

[5] He further testified that he was a changed person. He does not use drugs anymore and has converted to Islam, prays and reads the Khoran on a daily basis.

[6] Mathilda Haimbambe was called to testify for the accused. She testified that she is 32 years old and a Namibian citizen. She is employed at the Ministry of Fisheries as an inspector in Walvis Bay. She resides at no 160, Theo-Ben Gurirab Street, Walvis Bay. She owns that house since 2007. She and the accused started a romantic relationship in 1994 and it was an on-and-off relationship. She testified that she does not have a problem for the accused to come and reside at her house, if released on
bail.

[7]     That was the case for the accused.

[9] Mr. Wessels submitted that the accused is innocent until proven guilty and the court should ordinarily grant bail unless this is likely to prejudice the ends of justice. He further submitted that there is a reasonable chance that the accused may succeed with his defence. In support of his submissions he referred this Court to the two psychiatrist reports (exhibits "K" and "L") which were admitted in evidence. The report by Dr. Reuben Japhet (exhibit "K") under the headline 'findings' states:

"3.2 According to available particulars, the accused at the time of the commission of the alleged offence was having a mental defect as supported by the findings that he has been smoking marijuana for many years and he was psychotic when he committed the alleged offence. Because of psychosis, his cognitive function was greatly impaired and as such, he:
a)	Was not fully capable to appreciate the wrongfulness of his act
(b)	Was not fully capable of acting in accordance with an appreciation of the wrongfulness of his act. 

[10] The second report compiled by Dr. Mthoko (exhibit "L"), (the relevant finding) states:

"At the time of the commission of the alleged crime, the accused did suffer from a mental disorder as supported by his history using psychoactive substances. Although he understood the nature of what he was doing, his action was the consequences of a delusion and therefore his ability to appreciate the wrongfulness of his alleged offence and act in accordance with such appreciation was diminished."

[12] I do not wish to express myself on those submissions at this stage. The trial is still pending, the accused must still come and testify. However it appears that for the defence of mental illness to succeed all factors must be taken into account. The State, the defence and even the Court has the right to call the psychiatrists to come and testify about the reports and to clarify the content of the reports in order for the Court to be in a position to indeed conclude whether the accused was mentally sick or not when he committed the offences.

Is the accused a flight risk?

[13] In answering that question there are certain factors that the court must take into account. For instance, is it more likely that the accused would stand his trial or is it more likely that he would abscond and forfeit his bail? The determination of that issue involved a consideration of sub-issues such as:
(a)	How deep his roots are in Namibia;
(b)	What assets he owns in Namibia;
(c)	What means does he has to flee from the country;
(d)	How much he could afford the forfeiture of the bail money;
(e)	How serious was the offence in respect of which he had been charged;
(f)	How strong the case against him was and how much inducement there would be for him to avoid standing trial.

[14] It is trite law that the onus is on the accused to prove on preponderance of probabilities that he will not abscond if granted bail. In casu, the accused testified under oath that he will not abscond, if granted bail.

"where an accused applied for bail and confirms on oath that he has no intention of absconding due weight has of cause to be given to this statement on oath. However, since an accused who does not have such an intention is hardly likely to admit it, implicit reliance cannot be placed on the mere say-so of the accused, the court should examine the circumstances."

[18] For all those reasons, I am not satisfied that the accused discharged the onus of proving that he will not abscond if granted bail.
If released on bail, is the accused likely to commit further offences?

[19] On his own admission, the accused was addicted to drugs especially dagga. He testified that in order to feed or fulfill his drug habit he would steal from other people. He testified that he has now stopped taking drugs and has converted to Islam. Up until the date of his arrest, the accused was still using drugs. He only stopped when he was incarcerated and in all likelihood because it was difficult to get drugs in prison. He has not underwent any rehabilitation for his drug addiction of many years and nor did he testified that he intends to seek professional help to avoid using drugs again. The temptation (especially without having obtained professional help) is high and I am not convinced that the accused, once released on bail, will not go back to his old habits and start using drugs again. And once he start that, being unemployed, he will resort to stealing in order to feed his drug habit and thus committing further crimes.

Will it prejudice the interest of the administration of justice if bail is granted or put differently, is it in the public interest to release the accused on bail?

[21] The violence and brutality against the vulnerable in our society, especially women and children, is escalating at an alarming rate. Almost every day we read in newspapers how women and children are being assaulted and killed by men for petty issues. These crimes against them evoke a sense of helplessness in the national character. They are crying for protection from the Courts and other law enforcement agencies and for this Court to release the accused on bail (while his case is pending) is to ignore that call for protection. It will simply not be in the public interest to do so.

[22] I am mindful that the accused has been in custody for over 4 years now and, if convicted, the period of years spent in custody will undoubtedly be taken into account in determining an appropriate sentence.

[23]   For all those reasons, the application to release the accused on bail is refused.

NDAUENDAPO J