Mudumbi v Prosecutor-General of the Republic of Namibia and Others (HC-MD-CIV-MOT-REV-2023/00452) [2025] NAHCMD 179 (17 April 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: HC-MD-CIV-MOT-REV-2023/00452

In the matter between:

CHRISTINE MUDUMBI APPLICANT

and

PROSECUTOR-GENERAL OF THE REPUBLIC OF NAMIBIA 1^st RESPONDENT

REGIONAL COURT MAGISTRATE FOR

THE DISTRICT OF RUNDU 2^nd RESPONDENT

INSPECTOR-GENERAL OF THE NAMIBIAN POLICE 3^rd RESPONDENT

Neutral Citation: Mudumbi v Prosecutor-General of the Republic of Namibia (HC-MD-CIV-MOT-REV-2023/00452) [2025] NAHCMD 179 (17 April 2025)

Coram: RAKOW J

Heard: 17 October 2024

Delivered: 17 April 2025

Flynote: Practice – Motion proceedings – Point in limine – It is necessary to allege that the deponent of the affidavit has the authority to oppose the application – Failure to make such an averment is fatal to the opposition.

Summary: The applicant instituted proceedings against the Prosecutor-General for its decision to prosecute the applicant on charges that were previously withdrawn by the State. The withdrawal of the charges were as a result of an agreement between the applicant’s erstwhile legal counsel and the public prosecutor, a delegate of the Prosecutor-General, the agreement being that the applicant will plead guilty to four charges, after which the State will withdraw the remainder of the charges. The applicant indeed tendered the guilty pleas and the public prosecutor withdrew the remaining charges.

A point in limine was raised by the applicant, challenging the respondent deponent’s authority to oppose the application on behalf of the first respondent. Apart from the allegation not having been made by the deponent, there is also no affidavit from the Prosecutor-General indicating that she is opposing the application and that the deponent will file the necessary answering affidavit on her behalf.

Held that, this is not an instance where the challenge lies against the affidavit and the authority to depose thereto, but against the opposition of the whole application.

Held that, it is necessary to allege that the deponent of the affidavit has the authority to oppose the said application.

Held that, the point in limine is upheld and the application is granted with costs.

ORDER

1. The application is upheld.

2. Costs awarded to the applicant on an attorney client scale.

JUDGMENT

RAKOW J

Introduction

[1] The applicant is Ms Christine Mudumbi, currently residing in Windhoek but previously from Rundu. The first respondent is the Prosecutor-General of the Republic of Namibia, appointed as such in terms of Article 88 of the Namibian Constitution. The second respondent is the Regional Court Magistrate for the District of Rundu, cited for any interest that she may have as there are criminal proceedings currently pending against the applicant before her under case number CR09/02/2012. The third respondent is the Inspector-General of the Namibian Police, cited herein for any interest he may have in the matter and representing the Namibian Police and the investigating officer in the matter.

Purpose of the application

[2] The purpose of the application is to seek three substantive orders, namely:

1. Declaring that the State (Prosecutor-General) is bound by the agreement with the applicant to withdraw the 15 charges against the applicant and it had no right to reinstitute those charges after the fact.

2. Declaring the current and ongoing proceedings in the Magistrates Court of Rundu as unfair and invalid, and setting them aside.

3. Reviewing, correcting and setting aside the decision of the State (Prosecutor-General) to reinstitute charges withdrawn during or about November 2022 on the basis of the agreement reached between it and the applicant, and setting aside such decision.

[3] On 22 November 2016, the applicant facing 19 charges at the time, pleaded guilty to four charges in terms of the agreement reached with the State and the State accepted the plea of guilty and withdrew the rest of the charges against the applicant. The applicant seeks to declare the State bound to the agreement and that the State has no right to withdraw from the agreement and reinstitute the charges then withdrawn against the applicant.

[4] The second order seeks to invalidate the ongoing criminal proceedings in the Regional Court for the district of Rundu. The third order is to review, correct and set aside the decision of the Prosecutor-General to reinstitute the charges when withdrawn, notwithstanding the State accepting the Applicant’s plea of guilty on four charges and withdrawing the rest of the charges as negotiated between the State and the legal representative of the applicant.

Background – according to the affidavit of the applicant

[5] During 2012 the applicant was investigated by the Rundu Police on a number of charges, whereafter she was arrested and released on bail and from 2012 to November 2016 for a period of about five years she had charges pending against her and attended the court in Rundu. The trial date was finally set for 22 November 2016 and the State preferred 19 charges of fraud against the applicant. At that stage she was fully prepared to stand for trial but when she arrived at court she and her legal representative were informed by the State Prosecutor Mr Titus, that some of the witnesses were not at court as they were not subpoenaed as well as some of their whereabouts were not known.

[6] She was then informed by the prosecutor that if they start with the trial it will most probably be postponed to another date owning to the fact that the witnesses were not available. The applicant then gave her legal practitioner instructions to start with the trial and to oppose any application for postponement, which he then communicated to the public prosecutor. They started negotiations and the public prosecutor indicated that he could only see merits in the first four charges. He expressed his doubts with regard to the remainder of the charges.

[7] An offer was then made that should she tender a plea of guilty on the first four charges, the State was willing to withdraw the remainder of the charges. The applicant and her legal practitioner again went through the charges and she agreed to the proposal to plead guilty to the first 4 charges and that the State would withdraw the rest of the charges and will not bring it back again. After the drafting of the pleas, it was given to the prosecutor who took it up with his seniors. They proceeded to court and then she pleaded guilty on the four counts as agreed and the remainder was withdrawn. Mr Ntinda confirms this in his affidavit. He was her legal practitioner who accompanied her to court and also did the negotiations with the prosecutor.

[8] Six years later during 2022 the applicant received a call from a police officer in Windhoek who said she must come to their offices. There she received another summons to appear in the Rundu Regional Court. Since the festive season was approaching she decided to travel to Rundu to enquire if there is perhaps an error in relation to the matter. She sought for the record of the proceedings during November 2016 but it took some time as the clerk could not trace the record.

[9] She further tried to find out from the current public prosecutor of Rundu as to what was happening but she was not aware of the matter and the record of proceedings was not available to her. She returned to her erstwhile legal practitioner and after securing the record, took up the matter with the Prosecutor-General. The file was then transferred to Mr Namandje as Mr Ntinda took up pupilage during 2023.

[10] The applicant further managed only to raise the requested amount of money to bring the application in September 2023 and seeks condonation should the court be of the opinion that it took too long to bring the review application.

[11] She submitted that the decision of the Prosecutor-General to bring back the charges that was withdrawn is unfair, unreasonable and inconsistent with Article 18 of the Namibian Constitution, requiring public officials’ decisions to be fair and reasonable. The State is not entitled to withdraw from an agreement to the prejudice of the accused. She also pointed out that a period of more than 10 years has since lapsed from the time the charges were initially served against her.

Background – according to the answering affidavit

[12] Mr Matota filed an answering affidavit on behalf of the respondent. He pointed out that article 88(2)(a) of the Namibian Constitution vests the Prosecutor-General with the power to prosecute, subject to the provisions of the Constitution in the name of the Republic of Namibia in criminal proceedings. Article 88(2)(d) authorises her to delegate to other officials subject to her control and direction authority to conduct criminal proceedings in any court.

[13] PG Circular 2 of 1994 lists offences in respect of which the Prosecutor-General’s decision is required before the trial commences. One of these offences is Fraud or Theft involving an amount above N$60 000. When a withdrawal of these charges takes place it should only be done upon consultation with the Prosecutor-General, the Deputy Prosecutor-General or a senior officer, in this instance the Control Prosecutor assigned specifically by the Prosecutor-General for that purpose.

[14] According to the district court record for the matter of the State v Mudumbi Case Number A82/2012 the applicant made her first appearance on 18 February 2012 on several counts of fraud and alternative counts of theft. She pleaded in terms of section 119 on these charges and on 10 February 2015 the court was informed that a Prosecutor-General’s decisions has been made and that the applicant was to be arraigned on 19 counts of fraud and 19 alternative counts of theft. The matter was then transferred to the Regional Court, where the applicant had to appear for the first time on 2 March 2015. Here, the matter was postponed on numerous occasions.

[15] On 22 November 2016 the State was represented by Mr Titus and the applicant was represented by Mr Ntinda. Mr Titus addressed the court and indicated:

‘We are withdrawing the main charge and proceed with theft 4 counts as we are withdrawing 15 count of theft.’

[16] Thereafter, he put each of the four counts of theft to the applicant who pleaded guilty to all the counts. Mr Titus accepted each of the guilty pleas and the applicant was convicted on all the four counts and so sentenced. From Mr Titus’s accompanying affidavit it is clear that he made the decision to act in the manner he did on his own. He confirmed that he was the prosecutor in the Regional Court at Rundu on 22 November 2016. He stated that some witnesses were not present at court as they were not traced or not served with subpoenas as he informed the applicant’s counsel of that.

[17] Mr Titus indicates that Mr Ntinda approached him and indicated that his client was willing to plead guilty to four counts of theft but will dispute the other counts. He had no contact at any stage with the applicant and at no stage was she present during their discussions. He denies that he indicated that he could only find merit in four of the charges but does confirm that he indicated to Mr Ntinda that some complainants on some of the charges were not traced for them to be served. He never approached the defence with an offer, he just accepted the plea that they offered. He never stated that the proceedings will not be brought back again. He did however, report the outcome of the matter to Ms Ester Jafet his Control Prosecutor. Ms Jafet indicated that she never amended the decision to prosecute.

[18] She advised that she could not recall Mr Titus approaching her to have some of the charges withdrawn against the accused person. She recalls that he approached her about some witnesses who could not be traced, especially account holders concerned. After she received a letter from Mr Matota requesting her for further information, she indicated that she will issue summons again for the applicant for the remainder of the charges. He then also indicates that he was the author of a letter with instructions to re-instate the said charges.

[19] Mr Haindobo, who was the person initially authorized to take the decision to prosecute the applicant never recalled or rescinded that decision, neither did Ms Jafet. Mr Haindobo was authorized to take the said decision by the Prosecutor-General under a delegation of authority and did so under the powers granted under section 122(2)(i) of the Criminal Procedure Act 51 of 1977. Mr Titus had no authority to withdraw the said charges and the withdrawal was invalid and a nullity. Mr Titus had a duty to comply with the decision to prosecute and when he withdrew the charges, it was a failure to comply with the decision and as such an irregularity. The power to conduct criminal proceedings in the name of the Republic of Namibia in any court in Namibia as was the delegation which Mr. Titus held was in terms of Article 88(2)(d) of the Namibian Constitution and was a delegation under the control and direction of the Prosecutor-General. He had no authority to act contrary to the Prosecutor-General’s decision to arraign the applicant on 19 counts of fraud and 19 alternative counts of theft.

[20] Mr Matota denies that administrative law principles are applicable on prosecutorial decisions. And further that if there was an agreement between Mr Titus and Mr Ntinda, then such an agreement was unlawful as Mr Titus did not have the power to deviate from the decision to prosecute that the then Deputy Prosecutor-General Adv Haindobo made.

Points in limine

[21] It was denied that Adv Matota made the minimum required averments relating to authority to oppose the application.

[22] Secondly, the first respondent irregularly appears to raise a collateral challenge against the decision taken by Mr Titus, the prosecutor who withdrew 15 of the 19 charges faced by the applicant.

[23] It is further argued that PG Circular No 2 is not a binding circular as far as members of the public is concerned. The applicant denies having knowledge of such a circular.

Arguments of the parties

[24] On behalf of the applicant, it was argued that at the Rundu Magistrates Court a discussion took place between the Applicant’s legal practitioner and the public prosecutor concerned, Mr Albert Titus, who had problems in that some of the witnesses were not at court and were not subpoenaed, and the whereabouts of some of the witnesses were not known. The Applicant’s legal practitioner was given instruction to oppose any postponement and to continue with the trial. The Applicant’s legal practitioner liaised with the public prosecutor concerned, prior to the commencement of the trial. It was during the contact between the Applicant’s legal practitioner and the public prosecutor that the public prosecutor expressed some doubts on some of the charges. The version of the public prosecutor concerned, Mr Titus, must be rejected on paper as his version consists of bald and uncreditworthy elements and raises fictious disputes of fact. An offer was made resulting to the Applicant pleading to four charges and the State withdrawing the remainder of the charges. The Applicant was then convicted in accordance with the agreement between the parties.

[25] Regarding the point in limine, it was submitted that the main Answering Affidavit is deposed to by one Lucious S. Matota. He states under paragraph 1 of the Answering Affidavit that he is a chief public prosecutor and that he was authorised to depose to the affidavit. He did not make any other allegation that he was authorised to oppose the application. He was under obligation to make out a case in that respect in the Answering Affidavit.

[26] It is further argued that the first respondent (‘the PG’), in dealing with those who are being prosecuted, is also under obligation to be fair and reasonable as required under Article 18 of the Namibian Constitution. Both the State and the Court accepted the Applicant’s plea and withdrawal of the charges. This, in context, binds the State to the agreement and, assuming the State were to be entitled to withdraw and resile from the agreement, then there would have been a duty to give the Applicant an opportunity to make representations.

[27] Regarding the point taken in limine, the respondent by way of Mr Matota in their Answering Affidavit states the following:

‘I am authorized to depose to this affidavit on behalf of the first respondent. The facts to which I depose are within my personal knowledge, save where otherwise indicated or the context otherwise indicates; and are to the best of knowledge and belief, true and correct.’

Pursuant to the above, the Applicant is of the view that Mr Lucious S. Matota who deposed to an Affidavit on behalf of the First Respondent failed to make the minimum required averments relating to authority to oppose the Application on behalf of the First Respondent.

[28] It is submitted by the respondents that after the Applicant pleaded guilty to the four alternative charges in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977 (the CPA), she was convicted by the Rundu Regional Court and subsequently sentenced to pay a fine N$50 000 and in default thereof 5 years imprisonment whereof N$20 000 or two years were suspended for a period of five years, on condition that during suspension the Applicant must not be convicted of similar offences.

Legal arguments

Points in Limine

[29] In Otjozondu Mining (Pty) Ltd v Purity Manganese (Pty) Ltd¹ the court held that:

‘[53] It is now trite that the applicant need do no more in the founding papers than allege that authorisation has been duly granted. Where that is alleged, it is open to the respondent to challenge the averments regarding authorisation. When the challenge to the authority is a weak one, a minimum of evidence will suffice to establish such authority: Tattersall and Another v Nedcor Bank Ltd 1995 (3) SA 222 (A) at 228J – 229A

[54] The Ganes case Mr Bava relies on states clearly (at 624F – H, para 19): “In the founding affidavit filed on behalf of the respondent Hanke said that he was duly authorised to depose to the affidavit. In his answering affidavit the first appellant stated that he had no knowledge as to J whether Hanke was duly authorised to depose to the founding affidavit on behalf of the respondent, that he did not admit that Hanke was so authorised and that he put the respondent to the proof thereof. In my view, it is irrelevant whether Hanke had been authorised to depose to the founding affidavit. The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorized.”’

[30] It is submitted by the respondent that the matter of Ngairoure v Council for the Municipality of Windhoek² where the court dealt with this issue as follows, is authority for their position that Mr Matota had authority to oppose the proceedings:

‘[19] I now turn to deal with the issue of authority raised by the applicant. When one deals with the issue of authority, it should be borne in mind that a deponent need not be authorized in order to depose to an affidavit. The authorization of such a deponent should not be confused with the authorization of the institution, defending and prosecution of proceedings on behalf of another party.

[20] Satchwell. J, in the matter of Firstrand Bank Ltd v Carl Beck Estates (Pty) Ltd and Another (56174/2007) [2008] ZAGPHC 423 stated that where facts contained in the affidavit fall within his personal knowledge and are based on records and documents available to him. He is indeed pre-eminently the person who would have knowledge of the relevant facts.’

[31] Also, the High Court in Minister of Safety and Security v Inyemba³ adopted the stance of the Supreme Court judgment in Ganes and Another v Telecom Namibia Ltd (608/2002) [2003] ZASCA 123; [2004] 2 All SA 609 (SCA) (25 November 2003) where it held that:

‘The deponent to an affidavit in motion proceedings need not be authorized by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorized. In the present case the proceedings were instituted and prosecuted by a firm of attorneys purporting to act on behalf of the respondent. In an affidavit filed together with the notice of motion a Mr Kurz stated that he was a director in the firm of attorneys acting on behalf of the respondent and that such firm of attorneys was duly appointed to represent the respondent. That statement has not been challenged by the appellants. It must, therefore, be accepted that the institution of the proceedings were duly authorized.’

[32] This point in limine does not challenge the authority to make the answering affidavit though, it challenges the authority to oppose the application. It is not an instance where the challenge lies against the affidavit and the authority to depose thereto, but lies against the opposition of the whole application. Mr Matota does not allege that he is authorized to oppose the application on behalf of the Prosecutor-General in his answering affidavit, only that he is authorized to make the said affidavit.

[33] Otjozondu Mining is clear in regard as to what must be alleged. It is necessary to allege that the deponent of the affidavit has the authority to oppose the said application. In this instance it was not alleged. The case of Minister of Safety and Security v Inyemba finds no application, as it is challenged from the start that Mr Matota does not have the authority to oppose the application. Neither is there an affidavit from the Prosecutor-General that she is opposing the application and that Mr Matota will file the necessary answering affidavit on her behalf.

[34] For that reason the point in limine must be upheld and the application granted. The application is granted with costs on an attorney client scale awarded to the Applicant. The court will for this reason not deal with the merit of the application.

[35] In the result, I make the following order:

1. The application is upheld.

2. Costs awarded to the applicant on an attorney client scale.

----------------------------------

E RAKOW

Judge

APPEARANCES

Applicant: S Namandje

Of Sisa Namandje & Co. Inc, Windhoek

Respondents: N Ilovu

Of Office of the Government Attorney, Windhoek,