Mostert v S (HC-MD-APP-CAL-2024/00103) [2024] NAHCMD 773 (19 December 2024)

12

WALTER ROOIES MOSTERT APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Mostert v S (HC-MD-APP-CAL-2024/00103) [2024] NAHCMD 773 (19 December 2024)

Coram: JANUARY J et CLAASEN, J

Heard: 6 December 2024

Delivered: 19 December 2024

Flynote: Criminal Law and Procedure – Bail – Appeal against refusal of bail in lower court – Appellant burdened with onus to prove, on balance of probabilities, that he will stand trial and not abscond – The court of appeal should not interfere or set aside the decision of the court a quo to refuse bail unless it is satisfied that the decision of the magistrate is wrong.

Summary: The appellant and other accused persons appeared in the Regional Court. The appellant is charged with 12 counts and various alternative charges which range from contraventions under the Anti-corruption Act 8 of 2003, contraventions under the Prevention of Organized Crime Act 29 of 2004, contraventions under the Immigration Control Act 7 of 1993, fraud, extortion, and theft. The appellant applied for bail in the regional court and was refused bail on the bases of a likelihood of interference with witnesses, a likelihood that the accused will abscond and that it will not be in the interest of the administration of justice to grant bail to the applicant

Held; that an appeal court should not interfere or set aside the decision to refuse bail unless it is satisfied that there has been a misdirection by the court a quo.

Held further; that there is no misdirection in the court a quo’s decision to refuse bail to the appellant nor can it be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly.

________________________________________________________________

ORDER

1. The appeal against the refusal of bail is dismissed.

2. The matter is considered finalised and it is removed from the roll.

RULING

CLAASEN J (JANUARY J concurring):

Background

[1] This is an appeal brought under s 65(1) of the Criminal Procedure Act 51 of 1977 as amended (‘the CPA’) against the refusal of bail by the regional court magistrate in Windhoek on 3 May 2024. The court a quo refused to grant bail on the bases of a likelihood of interference with witnesses, a likelihood that the appellant will abscond and that it will not be in the interest of the administration of justice to grant bail to the appellant.

[2] The appellant and other accused persons appeared in the Regional Court. The appellant is charged with 12 counts and various alternative charges which range from contraventions under the Anti-corruption Act 8 of 2003, contraventions under the Prevention of Organized Crime Act 29 of 2004, contraventions under the Immigration Control Act 7 of 1993, fraud, extortion and theft. The charges are set out in an addendum to this judgment.

[3] The appellant, through his counsel at the time, filed his Notice of Appeal on 22 May 2023 wherein he assails the court a quo’s decision on several grounds. Incidentally, counsel and the appellant have since parted ways. On the hearing date the appellant assured the appeal court that he is aware of his rights to legal representation and will proceed to argue the bail appeal in person. The grounds are summarized below:

1. The court a quo erred in law and or fact by failing to consider the real issues and based the ruling on wrong analysis of the evidence, alternatively evaluating the evidence in a piecemeal fashion;

2. The court a quo misdirected itself by disregarding that the State does not have a strong case against the appellant. In this regard the appellant refers to certain issues such as the jurisdiction of the Anti-corruption Commission, (‘the ACC’) to investigate the matter, that the appellant was arrested without a warrant, and that he was again re-arrested on a new warrant without the old warrant being cancelled;

3. The court a quo erred in law and or fact by finding that the appellant is a flight risk as his wife and daughter are in Namibia, he returned to Namibia on own accord when he learnt that it was reported that he fled Namibia and after learning that there are extradition proceedings underway. Furthermore, he informed the ACC of his whereabouts whilst he was in South Africa;

4. The court a quo erred in law and or in fact when finding that the appellant would interfere with state witnesses;

5. The court a quo erred by overemphasizing s 61 of the CPA in weighing the interests of the administration of justice against the appellant’s right to liberty and that he was detained for 2 years and 9 months. Furthermore, that it is not in the interest of justice that he be detained as anticipatory punishment.

6. The court a quo erred in law by failing to warn the appellant against self-incrimination when he testified about the way he first escaped;

7. The court a quo erred in law or in fact by finding that the appellant should have challenged the lawfulness of the arrest though the legal avenues available to him.

Test for appeal against a decision on bail by a lower court

4. The scope and ambit of an appeal against a decision on bail is contained in s 65(4) of the CPA which reads as follows:

‘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 was wrong, in which event the court or judge shall give the decision which in its or his opinion the lower court should have given.’

4. Over the years the courts have endorsed the approach as set out in S v Barber¹ in the following terms:

‘It is well known that the powers of this Court are largely limited where the matter comes before it on appeal and not as a substantive application for bail. This Court has to be persuaded that the magistrate exercised the discretion which he has wrongly. Accordingly, although this Court may have a different view, it should not substitute its own view for that of the magistrate because that would be an unfair interference with the magistrate's exercise of his discretion. I think it should be stressed that, no matter what this Court's own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly.’

4. It is thus clear that it matters not whether this court agrees or disagrees with the factual findings of the magistrate, the inquiry is limited to whether the court’s discretion was exercised wrongly. With that being said, this court does not understand it to be totally unfettered but rather, the discretion has to be applied judicially, i.e. whilst having regard to the legal framework and in accordance with the correct legal principles.

4. It is established law that an accused who applies for bail bears the onus to prove on a preponderance of probability that it is in the interest of justice that he or she should be granted bail.² This means that an applicant must place before a court reliable and credible evidence in discharging this onus.

Grounds of appeal considered

4. It is trite that appeal grounds have to be set out clearly and unambiguously,and that grounds that do not meet that criteria are invalid and may be ignored.³ Grounds of appeal define the parameters of the appeal and inform the respondent of the case it is required to meet.⁴ Despite numerous judgments cautioning against vague and unspecified grounds of appeal the practice appears to be honoured more in the breach than the observance. Ground 1 is too generalised to qualify as a valid appeal ground. In a similar vein, the issue complained about in ground 7 was not a finding by the magistrate. It was a mere comment made in passing, and the court a quo has not relied on it for the bail ruling.

4. It is the appellant’s case that the state does not have a strong case against him at all. His reasons for that contention is encapsulated in ground 2 of the appeal, which he reiterated in argument and it need not be repeated. The respondent presented a different view and cited Iipinge v S,⁵ in its heads of argument that in bail proceedings the state is not required to prove the alleged offence but only that it has an answerable case against the bail applicant.

4. It is now settled law that the prima facie strength or weakness of the State’s case is indeed an important consideration during a bail enquiry. At the same time it should be emphasized that a bail application is not the trial itself and the state thus does not have to produce its evidence in the true sense. Ordinarily, the state presents what it has available in the docket through the word of the investigating officer(s). The court will thus prognosticate and form an opinion of the prima facie strength of the state’s case or lack thereof.

4. In this matter the chief investigating Officer Justine Kanyangela and Phellem Masule testified about the merits. Their essential averments signify that a certain Pieterse family, who are foreign nationals from South Africa, implicated the appellant as a person who has facilitated false birth certificates, identity documents and Namibian passports to several members of that family. Apart from a statement by the complainant Ms Kanyangela, amongst others, spoke about the statement of another witness who says that they met with the Pieterse family at the appellant’s house in connection with these documents. Ms Kanyangela also informed the bail court that the Pieterse family was prosecuted for being in possession of the false Namibian documents and their respective matters were finalised in the courts.

4. In S v Dausab,⁶ it was said that while it may be correct that the accused is not compelled to address the merits during the bail application, depending on the circumstances of a particular case and the evidence proffered on the merits by the State, a decision by the accused person not to address the merits may turn out to be fatal. Along that line the court in Nghipunya v S,⁷ referred to S v Botha,⁸ wherein it was stated that ‘… in order to successfully challenge the merits of such a case in bail proceedings an applicant needs to go further: he must prove on a balance of probability that he will be acquitted on the charge…’

4. Having read the record of the bail proceedings, it is hard to miss that the appellant, in pursuit of bail, elected to focus the enquiry on issues unrelated to the legal criteria for the granting or refusal of bail. Whether that was done to deluge or confuse what is relevant we cannot say, but ultimately it did not displace the prima facie strength of the state’s case. Absent a successful attack to refute the allegations, which was not done in the court a quo, there is nothing standing in the way of accepting the state’s case as a prima facie strong one.

4. We turn to the ground that the court a quo’ erred by finding that the appellant is a flight risk. The appellant maintains that he is not a flight risk at all. In S v Hudson,⁹ it was said that where an accused applies for bail and confirms on oath that he has no intention of absconding due weight has to be given to his statement under oath. However, since an accused who does have such intention is hardly likely to admit it, implicit reliance cannot be placed on the mere say-so of the accused and the court should examine the circumstances.

4. It is thus incumbent on the bail court to test the reliability of a statement that one will not abscond in the light of other established facts. The court a quo referred to the evidence given by officer Masule that the appellant has dual citizenship (in Namibia and South Africa) and that the appellant has illustrated that he is able to escape and evade justice. It was not in dispute that the appellant has on 5 November 2021 escaped from a private hospital in Windhoek and travelled to South Africa. That happened while he was in custody and in the middle of a bail hearing in the Regional Court. It appears that he was arrested again, months later, on 24 March 2022 at Noordoewer.

4. The appellant contends that the trip was for him to seek legal counsel. Furthermore, that he told one Mr Olivier, also employed at the ACC, that he was going to South Africa. Mr Olivier in his testimony refuted that the appellant informed him about his plans to go to South Africa. It is also not in dispute that extradition proceedings were started against the appellant and he, on his own version, says that he returned once he learnt of the oncoming extradition request. The appellant confirmed that he owns no fixed assets and that his spouse and one daughter reside in a rental property in Windhoek. Against that background it is our firm view that the court a quo committed no error when it came to the conclusion that the appellant remains a flight risk.

4. In respect of the ground relating to interference with the state witnesses, the appellant argued that the advocate who send the reports regarding threats made to the complainant to the ACC, is not appointed as a Commissioner of Oaths, nor has the State proven beyond a reasonable doubt that he is the one who send the threatening messages and that he asked permission to contact Mr Pieterse.

4. The court a quo was presented with evidence of a memorandum dated 31 August 2021 by a certain advocate Grewar in Bloemfontein to the ACC that one of the witnesses, one Daan Pieterse, continues to receive threatening messages from an unknown cellphone urging the complainant to stop the case. The content of the threatening messages was photographed and tendered into evidence. It depicted that the sender and his group are following the complainant and his family. It also portrayed that in the event the case is not stopped, the complainant will be killed, the ladies in his family will be raped and his father will be hurt. Prior to that, on 19 March 2021 Advocate Grewar send an e-mail to the ACC which contained a lengthy voice message by the appellant to the witness, Daan Pieterse wherein the appellant inter alia requests that the matter be withdrawn. The transcript, translated by a sworn translator of the High Court of Namibia, was also admitted into evidence before the bail court a quo.

4. Counsel for the State deflated the argument that the advocate was not a Commissioner of Oaths in terms of the Justices of the Peace and Commissioners of Oaths Act of 1963, by reminding the court that hearsay evidence is admissible in a bail application. It is thus not a bare assertion that there has been attempts to interfere with a witness in this matter in order to have the case withdrawn. It is also clear that the appellant, on his own version, was unable to prove that he obtained permission from the investigating officer to contact the said Mr Pieterse. All things considered we cannot find any misdirection by the court a quo on this ground.

4. We turn to consider the ground about ‘overemphasizing s 61 of the CPA’ as opposed to considering the appellant’s period in detention and that he should not be kept in detention as anticipatory punishment. It is prudent to momentarily reflect back on the traditional bail factors namely the strength of State’s case, the high risk of absconding and interference with witnesses or evidence which came to the fore in this matter. There can be no qualm that the court quo was justified to refuse bail on the strength of the said traditional factors. These traditional bail factors culminate in the ultimate question of whether the interests of justice will be prejudiced if the accused is granted bail?

4. Whilst an accused’s liberty and the presumption of innocence are important considerations before any bail court, it does not automatically entitle an accused to bail. Additionally, they are not weighed on the scale of the bail enquiry in isolation. The respondent herein has shown that it has a prima facie strong case. The catalogue of offences to be traversed by the appellant are serious in nature and many of them will attract equally severe sentences. The respondent’s argument was that the appellant was a fugitive from justice. That not only prejudiced his co-accused but also the administration of justice. That cannot be ignored. The same goes for the evidence that one of the witnesses was threatened. Cumulatively, these considerations reinforce the finding by the court a quo that it would not be in the administration of justice to grant bail to the appellant, which question the magistrate was duty bound to consider. Therefore we find no error in this regard.

4. It is ironic that the appellant now wants to lay blame at the door of the magistrate for not reminding him to not incriminate himself when he spoke about how he escaped from custody. The appellant was legally represented during the bail proceedings. What the appellant also does not say is that he, through his counsel, volunteered the evidence on that aspect in his evidence in chief. Nor is this his trial proceedings and the complaint does not further his quest for bail. The appellant has, in any event, submitted in court that he withdraws this appeal ground.

4. In conclusion, we are unable to find any misdirection of the court a quo in its decision to refuse bail to the appellant nor can it be said that the magistrate exercised his discretion wrongly. The decision of the court a quo to refuse bail is unassailable. Accordingly, the appeal against the refusal of bails must fail.

4. In the result the following order is made:

1. The appeal against the refusal of bail is dismissed.

2. The matter is considered finalised and it is removed from the roll.

________________

CM Claasen

Judge

________________

H C January

Judge

APPEARANCES:

FOR THE APPELLANT: Mr Walter Rooies Mostert

In person

FOR THE RESPONDENT: Mr T Gaweseb

Of the Office of the Prosecutor General