CASE NO. CA 92/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

SYDNEY CLAUDE SCHNUGH
versus
THE STATE

Heard:        24 May 2010 Delivered:   31 January 2011

JUDGMENT

[4] The magistrate prepared a written judgment in which she summarizes the evidence presented.  The judgment also contains some reasoning, but ends rather abruptly. Although the transcribed record is not clear, it appears that this judgment was read out in court. The final decision, namely whether the application was granted or refused does not appear clearly from the record. However, it is common cause between the parties that bail was indeed refused.

[5] I must confess that I have great difficulty in following the magistrate's judgment and to make sense of parts of the reasoning to discern what the actual grounds were on which bail was refused. My difficulty stems from the manner in which the magistrate expresses herself. The problem could also have arisen because she perhaps did not edit or proof read the written judgment. Furthermore, she did not initially provide additional reasons in response to the notice of appeal. When the appeal came before us on a previous occasion, we ordered that the magistrate provides reasons on the grounds raised in the notice of appeal. These reasons suffer from the same defects as the judgment. In addition, some of the answers do not in substance address the grounds of appeal and are unhelpful.

[6] I think it is necessary to stress the importance of a magistrate's duty to provide reasons when a matter goes on appeal. The magistrate's reasons are, if properly done, of great assistance to the court of appeal, which cannot be expected to adjudicate the appeal without the benefit of the magistrate's findings on fact and law and the accompanying reasoning. That is why rule 67(3) of the magistrates' courts places a duty on the clerk of the court to place a copy of the case record and notice of appeal before the presiding magistrate who shall within 14 days thereafter furnish to the clerk of the court a statement in writing showing -

[7] Rule 67(4) places a further duty on the clerk of the court who "shall upon receipt of the judicial officers statement forthwith inform the person who noted the appeal that the statement has been furnished". There is no indication in the record before us that these steps were ever taken. The importance of the magistrate's reasons are emphasised by the fact that he or she is required to furnish amended reasons should the accused amend his/her notice of appeal. This is provided for in rule 67(5), which states:

"(5) Within 14 days after the person who noted the appeal has been so informed, the appellant may by notice to the clerk of the court, amend his notice of appeal and the judicial officer may, in his discretion, within 7 days thereafter furnish the clerk of the court a further or amended statement of his findings of facts and reasons for judgment."

[10]  He continued (at 10A-B):

"	[T]he scheme envisaged in Rule 67 is designed to facilitate the fair

"It makes it extremely difficult for a Court of appeal to do justice to both the appellant and to the State if it is obliged to come to a conclusion without the assistance to which it is entitled from a magistrate, and which a magistrate is obliged to give."

[13] I respectfully agree entirely with the views expressed in the abovementioned authorities.

[15] Counsel before us were in agreement that the magistrate probably means to say in the last few words that she is denying bail, as in the first application, also in the second application on the basis that it is in the interests of the public and the administration of justice. I think this is a fair interpretation. The first part of the sentence is more difficult - is the magistrate saying that there obviously is a decreased risk of abscondment because she previously ordered that the appellant be kept in custody? If so, that would beg the question of whether the appellant is likely to abscond if released.

[18] Before turning to the merits of the appeal, it is necessary to record that section 65(4) of the Criminal Procedure Act, 51 0f 1977 expressly provides that the court hearing the appeal shall not set aside the decision against which the appeal is brought, unless the court is satisfied that the decision was wrong, in which event the court shall give the decision which in its opinion the lower court should have given.

[20] On 4 September 2009, the date the second bail application was launched, the appellant had not yet been formally charged on any of the additional complaints. By then about 8 months had passed, whereas Tjivikua's estimation was that the investigation would have been finalized within 3 months. The fact that the investigation had ostensibly not been finalized while a period of 8 months had passed, therefore formed the first basis of the second bail application.

[21] In the second bail application the State called W/O Nganyone, the new investigating officer, to testify about the progress of the investigations.

finalized by 12 October 2009.

[22] Nganyone was of the view that, taking into consideration the number of cases and the nature of the investigation, the time he took to complete the investigation was not long. The magistrate agreed with him, because she held that the investigation was completed within a reasonable time bearing in mind that he was singly handling it.

340 (SE).

[26] The magistrate delivered a ruling with reasons, which was not transcribed in full, as the recording was indistinct in several places. This Court ordered the magistrate on a previous occasion to reconstruct this part of the record, which she did. With due respect to the magistrate, the reconstruction is not a model of clarity. From what I am able to make out, it seems that the magistrate understood what the defence wanted, but she was of the view that, if the police officer has the dockets in court and is asked questions related to the contents, this will (i) lead to disclosure of the contents, which the State was not required to make; and (ii) prejudice the investigation, which was still incomplete.

[27] In my view the magistrate erred in both respects. Firstly, the mere fact that the dockets are made available and even if questions are asked thereon, would not necessarily lead to the disclosure of the contents in a way impinging on the rights of the State. Secondly, she erred by finding that Nganyone regarded the investigation as incomplete, which he clearly did not.

[30] It is trite that not every misdirection has an impact on the proceedings which avails an appellant's case on appeal. However, in my view the ruling of the magistrate placed an unwarranted damper on the future conduct of the defence in its cross examination and prejudiced the appellant by closing off an avenue by means of which he may have been able to establish the facts he needed to lay a basis for the first premise on which he launched the second bail application. Therefore the matter must be approached on the basis that the appellant would have been able to show that the investigation was still not complete. Defence counsel also indicated during her application to have the dockets available that she intended posing questions to Nganyone about the alleged strength of the State case. I think it must be assumed in favour of the appellant that the magistrate's ruling also caused some prejudice in relation to this aspect of the appellant's case.

[31] The eleventh ground of appeal is that the magistrate erred in law and/or fact by taking into account the provisions of section 61 of the Criminal Procdure Act, 51 of 1977, in refusing bail, without a proper enquiry being held on this issue, without the appellant being cross-examined on this issue, and without the State placing such ground on record at the outset of the bail application. It is indeed so that the State initially opposed the second bail application only on the basis that there was a risk that he would abscond. It is on this basis that the appellant went into the witness box and on this basis that he was cross examined. Only during the examination in chief of the investigating officer did he express the view that it is in the interest of justice that the appellant "is remanded in custody and that he stands his trial rather than being outside."   The magistrate gave no indication that she was conducting an enquiry as contemplated by section 61 of the Criminal Procedure Act. As I stated above, a fair interpretation of the magistrates' judgment is that the appellant was indeed refused bail on the basis that it would be against the interests of the public and the administration of justice. I agree with the submission made on behalf of the appellant that he was prejudiced by the belated raising of this matter without proper notice and clear indication of the case he was required to meet.

[32] What further concerns me in relation to this issue is that the magistrate did not give reasons why she was refusing bail in terms of section 61 of the Criminal Procedure Act. All she stated was that, as in the first application, she was also refusing bail on the same grounds in the second application. In her main judgment the magistrate gave no reasons for this decision. In her additional reasons she did not deal with this ground of appeal but referred the court and the parties to her judgment as fully covering this aspect. In my view the fact that she gave no reasons leaves the matter open to the Court of Appeal to consider the matter on its own grounds.

[33] In the alternative, even if I am wrong and I should accept State counsel's submission that the magistrate in fact concluded on the same grounds as during the first application that bail should be refused in the interest of the public and of the administration of justice, it means that the magistrate relied on the fact that (i) had evaded arrest; and (ii) the investigation was incomplete. As to (ii), clearly the investigation was complete except for the handwriting analysis, as was accepted by the magistrate in her final judgment. Appellant could hardly interfere with the remaining forensic investigation, except by refusing to give a specimen or by altering his handwriting. A refusal seems unlikely in view of all the negative implications of such conduct. Altering his handwriting can be done in or out of custody. No questions were posed to the appellant during cross examination to even suggest that he is likely to interfere with the remaining forensic investigation. Furthermore, the investigating officer made no allegation that the appellant would be likely to interfere with the further investigation. Surprisingly, further, Nganyone was not interested at all in the appellant's registers and other documentation in spite of the fact that in words of Ms Barry (State counsel during the appeal on the first bail application), this evidence was of "paramount importance" (see para [9] of the judgment in that matter). The police did not at any stage seize these items as they would clearly have been entitled to do in terms of the Criminal Procedure Act. On the State's case in the second application the registers and documentation are not important. I do not think the appellant should be further blamed for not offering to hand over the documentation as he was during the appeal on the first bail application (see para [9] of the judgment in that matter.)

[39] I further take note of the fact that the total amount alleged to be involved in the charges against he appellant is high in the vicinity of N$1,9 million. I added up the values of each charge, some of which have not been specified and some of which are in dispute, to be about N$1,665 000. This is still a high amount. It is not clear from the charges framed whether the value alleged is the estimated value of the goods before sale or whether it is the actual amount which appellant had to pay the complainant. Bearing in mind the high total value allegedly involved, I am nevertheless of the view that a high amount of bail plus stringent conditions are likely to be effective in the appellant standing his trial and satisfying the demands of public interest and the administration of justice.

[40] An indication was given during the hearing before us that the appellant is able to pay bail of N$50 000. I think this amount is fair in the circumstances of this case.

[41]   The following order is accordingly made:
1.	The appeal against the refusal of bail is upheld.
2.	The appellant is granted bail in the amount of N$50 000, subject to the following conditions if the bail money is paid in full:
(a) that the appellant appears at the next time and date to which the trial matter in any court has been postponed and remains in attendance until excused by that court, failing which a warrant may be issued for his arrest, the bail be cancelled and the bail money be forfeited to the State;
(b) that the appellant does not leave the district of Windhoek;
(c) that the appellant reports once daily between 18h00 and 20h00 at the Windhoek Police Station;
(d) that the appellant does not renew or apply for a passport or obtain temporary or emergency travelling documents from the authorities in Namibia of any other country.

VAN NIEKERK, J

I agree.

PARKER, J

Appearance for the parties:

For the appellant:						Adv E M Schimming-Chase 
					At first instructed by LorentzAngula 							Inc, later by Theunissen Louw and Partners

For the State:					Adv H F Jacobs 
							Office of the Prosecutor-General