Namuhuja v S (HC-NLD-CRI-APP-CAL-2024/00026) [2024] NAHCNLD 126 (1 November 2024)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION

HELD AT OSHAKATI

BAIL APPEAL JUDGMENT

Case No: HC-NLD-CRI-APP-CAL-2024/00026

In the matter between:

LEONARD PENDAPALA NAMUHUJA APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Namuhuja v S (HC-NLD-CRI-APP-CAL-2024/00026) [2024] NAHCNLD 126 (01 November 2024)

Coram: MUNSU J et KESSLAU J

Heard: 04 October 2024

Delivered: 01 November 2024

Flynote: Criminal Procedure – Bail – Appeal against the magistrate’s refusal to grant bail – Section 65(4) Criminal Procedure Act 51 of 1977 – Appellate court must not set aside decision of lower court unless satisfied that decision was clearly wrong – Court found that it is not in the interest of the public and the administration of justice for the appellant to be granted bail – No misdirection found in the exercise of the magistrate’s discretion.

Summary: The appellant stands charged with rape read with s 2(1) (a) of Act 8 of 2000. He applied for bail in the magistrate’s court. The state opposed the application on the basis that the appellant is facing a serious charge, that it is not in the interest of the public and the administration of justice for the appellant to be granted bail, that the appellant may interfere with state witnesses and ongoing police investigations, and lastly that state has a strong case against the appellant. Upon consideration of the material placed before it, the court a quo dismissed the application pursuant to s 61 of the Criminal Procedure Act 51 of 1977. Dissatisfied with the outcome, the appellant filed the present appeal. He argued that the court a quo overlooked his fundamental rights to liberty, and the presumption of innocence. He further contended that the court a quo erred in concluding that the state had established a prima facie case against him, and that there was a possibility that he would interfere with witnesses and investigations. He stressed that there was no evidence for the court to invoke s 61 of the CPA. The appellant also argued that the court a quo misdirected itself by failing to take into account the improper motive the complainant might have had to lay charges against him. He further submitted that it was incorrect for the court a quo to conclude that the state had established a prima facie case, notwithstanding that the investigating officer could not dispute that the alleged victim had been spotted frolicking a mere two days after the alleged rape.

Held, with reference to S v Barber, 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, with the inquiry limited to whether the court’s discretion was exercised wrongly.

Held, that the appellant raised issues on appeal which were not properly canvassed during the bail proceedings. These include, the alleged ‘bad blood’ between the appellant's, and the complainant’s families, as well as the claim that the alleged victim was spotted playing just two days after the alleged rape.

Held, that the court a quo exercised its discretion to deny bail after determining that the appellant was facing a serious charge, for which the state had a strong case, taking into account the public outcry and the likelihood of interference with witnesses or investigations.

Held, with reference to S v Gustavo, that s 61 of the CPA afforded the courts the power to refuse bail in the interest of the public or the administration of justice, even if an accused has shown on a balance of probabilities that he or she will not abscond or interfere with the witnesses or investigations.

Held, that, regard being had to the submissions by the parties, the ruling by the court a quo, as well as the applicable principles, the court is satisfied that the magistrate exercised her discretion properly, and cannot be faulted for refusing to grant bail on the facts before her.

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ORDER

______________________________________________________________________

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

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JUDGMENT

______________________________________________________________________

MUNSU J (KESSLAU J concurring)

Introduction

[1] We have before us an appeal against the refusal of bail by the Ondangwa Magistrate’s Court. The appellant was arrested on the 30^th of April 2024 on a charge of rape read with s 2(1)(a) of the Combating of Rape Act, 8 of 2000, as well as s 94 of the Criminal Procedure Act, 51 of 1977 as amended (CPA) (rape on diverse occasions).

[2] The appellant made his first appearance before the Ondangwa Magistrate’s Court on the 02^nd of May 2024, whereupon the matter was postponed to 29 May 2024, on which date the appellant applied for bail. On 05 June 2024, the appellant’s application for bail was dismissed. This is an appeal against the refusal of bail by the magistrate.

[3] The appellant was duly represented during the bail proceedings as well as on appeal before this court.

Bail proceedings in the court a quo

[4] The state objected to bail on the following grounds:

1. The appellant is facing a serious charge and if convicted, he will receive a lengthy custodial sentence;

2. It is not in the interest of the public and the administration of justice for the appellant to be granted bail;

3. The appellant may interfere with state witnesses and ongoing police investigations;

4. The state has a strong case against the appellant.

[3] The appellant testified under oath, and his testimony was briefly as follows: That he is a pensioner aged 67 years, he is married and resides at Oniipa, he owns a house in Windhoek and a communal farm in the northern part of the country, he owns cattle and goats, he employs a herd boy, he looks after his daughter who is at university as well as his grandchildren, his passport is expired, he does not have family abroad, he is diabetic and underwent a heart bypass, as well as a knee operation.

[4] The appellant further testified that during the time of his detention, he was visited by his wife, son, and in-laws. He also made phone calls to his lawyer and wife. As to the charge against him, he informed the magistrate that he would plead not guilty, and would disclose his defence at trial. He has no previous convictions, and assured the court that he would stand his trial.

[5] He also testified that he has not interfered with investigations, and that apart from the alleged victim and her mother, he is not aware of any other witnesses in the matter. He went on to say that he is willing to relocate to his house in Windhoek until the matter is finalised. He continued by saying that he can afford to pay bail of up to N$ 10 000, and that he is willing to report himself to the police.

[6] In opposition, the state led the evidence of the investigating officer, who testified that rape, particularly of minors, is a serious and prevalent offence in the district. He added that this case attracted significant public and media attention, and that the state has a duty to protect the victim (a vulnerable witness) from potential interference and further trauma.

[7] Additionally, he testified that the state has a strong case against the appellant, and that granting bail to the appellant would not serve the public interest or the administration of justice. The witness also stated that the investigation was still in its early stages, and that there was a need for further examination of the crime scene.

[8] According to the witness, the victim was undergoing counselling and had not been attending school due to the trauma, and further that there is fear that the appellant will interfere with witnesses because he knows them. Furthermore, the witness testified that there had been reports that the appellant’s family had been threatening the complainant.

[9] He continued by saying that the available evidence showed that the victim was sexually violated multiple times as per the doctor’s report, and that the victim’s statement identifies the appellant as the perpetrator. According to the investigating officer, there are also statements of witnesses who saw the victim in pain.

[10] Moreover, the witness informed the magistrate that the appellant has had access to medical care and his medication while in custody, therefore his incarceration does not bar him from receiving medical care. The witness is of the view that there are no suitable bail conditions.

[11] In its ruling, the court a quo exercised its discretion against granting bail and dismissed the application on the basis that it would not be in the interest of the public or the administration of justice to grant bail to the appellant.

The grounds of appeal

[12] The appellant’s grounds of appeal are as follows:

1. The learned magistrate erred and/or misdirected herself during the exercise of her discretion in finding that the appellant failed to discharge the onus resting upon him that he is a fit and proper candidate to be released on bail.

2. The learned magistrate erred and/or misdirected herself during the exercise of her discretion by failing to add sufficient weight to the testimony of the appellant insofar as it relates to:

1. His willingness to move to another jurisdiction.

2. That he is only aware of the identity of 2 state witnesses.

3. That he has made no attempt to interfere with investigations.

4. That he is willing to abide by any bail condition imposed by the court.

5. The appellant disputes and denies the allegations made against him.

3. The learned magistrate erred and/or misdirected herself during the exercise of her discretion in underemphasising the medical conditions of the appellant, alternatively failed to add sufficient weight to the appellant’s deteriorating health.

4. The learned magistrate erred and/or misdirected herself during the exercise of her discretion in finding that the state discharged the onus of proving a prima facie case against the appellant, notwithstanding:

1. The various material contradictions and improbabilities in the evidence of the state witness, in addition to accepting disputed hearsay evidence.

2. The evidence of the investigating officer W/O Jacobs who confirmed that there was evidence obtained from the wife of the appellant to the effect that she saw no signs of rape or untoward conduct.

3. The evidence of the investigating officer who could not dispute that the alleged victim was seen playing and frolicking a mere two days after the alleged rape.

4. The evidence of the investigating officer that the alleged rape occurred during March 2024, however the alleged rape only being reported on 10 April 2024.

5. The evidence of the investigating officer that a criminal complaint was only opened on the 15^th of April 2024.

6. Failed to take into consideration the improper motive the complainant may have to lay criminal charges against the appellant.

5. The learned magistrate erred and/or misdirected herself in the exercise of her discretion, by finding that the appellant did not prove on a balance of probabilities, that he is a prima facie candidate for bail or that appropriate conditions may be incorporated to cater for the grounds of objection.

6. The learned magistrate erred and/or misdirected and/or was wrong in the exercise of her discretion, by finding that there was a significant risk of interference by the appellant with investigations thereby failing to take into consideration the evidence that:

1. The appellant was aware of the allegations of rape as from 30 March 2024 and was only arrested on 30 April 2024.

2. During the above period of time the appellant did not attempt to interfere with investigations.

3. As from his incarceration, the appellant made no attempt to interfere with investigations.

4. The appellant, as per the testimony of the investigating officer, actively assisted with the investigations against him.

5. The state has already obtained the evidence of the complainant, victim and other witnesses, to the extent that, according to the investigating officer, that the state had sufficient evidence to convict the appellant.

7. The learned magistrate erred and/or misdirected herself in the exercise of her discretion, by finding that it would not be in the interest of the public and administration of justice for the appellant to be released on bail, alternatively that the learned magistrate conflated public outcry with the interest of the public.

8. The learned magistrate erred and/or misdirected herself in the exercise of her discretion, by finding that the appellant should not be admitted to bail in accordance with section 61 of the Criminal Procedure Act as Amended.

[13] The above grounds of appeal sum up to the traditional grounds relevant during a bail enquiry, inter alia, the seriousness of the offence; the strength of the state case; whether the accused will stand his trial; and whether the accused will interfere with witnesses.

Submissions by the parties

[14] Mr Greyling for the appellant submitted that the court a quo overlooked the appellant's constitutional rights and failed to give sufficient weight to the fundamental principles of bail, which include the right to personal liberty and the presumption of innocence. He argued that the fundamental purpose of bail has always been and still is to ensure the accused’s appearance for trial. Counsel emphasised that bail is an ordinary contract by which an accused undertakes to appear on a particular day, failing which the money deposited may be forfeited.¹ It was further argued that pre-trial release allows an accused person to keep the fabric of his life intact, maintain employment and family ties in the event that he is acquitted or given a suspended sentence.

[15] It was counsel’s submission that the court a quo erred when it found that there is a risk of the appellant interfering with witnesses and ongoing investigations due to the close relationship between the appellant and the alleged victim and other potential witnesses. Counsel contended that the appellant was aware of the allegations against him as far back as 26 March 2024, and although he was only arrested on the 30^th of April 2024, he made no attempt to directly or indirectly interfere with investigations.

[16] Furthermore, counsel maintained that, from the time of his arrest to the time of the bail application, the appellant was not kept in isolation, nor was he restricted from communicating with members of the public whilst in detention, yet he refrained from interfering. Counsel emphasised that, on the contrary, the investigating officer confirmed that the appellant has been cooperative.

[17] Additionally, Mr Greyling pointed out that the appellant is not aware of the identity of other state witnesses, apart from the alleged victim and her mother. It was pointed out that, in an effort to demonstrate his unwillingness to interfere, the appellant would be willing to reside at his residence in Windhoek pending the finalisation of the case and to abide by strenuous reporting conditions at Windhoek police station. It was submitted that the appellant denied any knowledge that his family members have attempted to intimidate the complainant, and no further evidence was presented by the state to substantiate the claim.

[18] It was counsel’s submission that unless the state can say that there is a real risk that the appellant will, not merely may, interfere, there does not appear to be a reasonable possibility of such interference.² Counsel stressed that the mere fact that the state witnesses happen to be friends or relatives of the accused is not sufficient reason to refuse bail.³

[19] Mr Greyling further submitted that a court should always consider suitable conditions as an alternative to denial of bail, and that failure to do so may lead to a failure to exercise a proper discretion.⁴

[20] It was counsel’s further submission that the court a quo misdirected itself when it found that the state had presented a strong prima facie case against the appellant which may incentivise the appellant to abscond. Counsel argued that ‘abscondment’ was not part of the grounds of objection for bail, and the magistrate’s reliance thereof was a clear misdirection. He stressed that the appellant is of advanced age, with several medical conditions. That, he has fixed property in Namibia, including livestock, and also that he has no family outside the country, nor does he own a valid passport.

[21] Moreover, counsel submitted that the appellant has not been provided with disclosure and therefore exercised his right to remain silent during the bail hearing, even though he denied the allegations. He went on to argue that there is nothing on record to suggest that the appellant expects, or ought to expect a conviction.⁵

[22] Furthermore, it was submitted that the court a quo placed significant emphasis on the hearsay evidence of the investigating officer regarding the purported statement by the alleged victim, and the findings in the medical report to come to the conclusion that there is a strong prima facie case against the appellant. Counsel submitted that, although admissible, hearsay evidence should not be relied on where it is disputed.⁶ Additionally, counsel argued that the magistrate should have considered that the entire case is based upon the evidence of a single witness, who is a minor aged 9. He contended that, even if the magistrate did not misdirect herself in finding that there is a strong prima facie case against the appellant, the presumption of innocence operates in favour of the accused in bail proceedings, even where it is said that there is a strong prima facie case against him.⁷

[23] Mr Greyling went on to submit that there was no objective evidence put forward for the magistrate to have applied her judicial discretion pursuant to s 61 of the CPA. It was contended that the unsubstantiated evidence of the investigating officer regarding purported public outcry, is in itself insufficient. Counsel further stressed that no evidence was presented that the appellant’s release would result in any threat to the community members. It was also argued that, the fact that the charge of rape falls within the ambit of s 61 does not in itself justify the conclusion that the granting of bail would impede the administration of justice.

[24] According to Mr Greyling, if this court is to find that the appellant is a good candidate for bail, then the decision of the court a quo would be wrong, and this court should consider granting bail with appropriate conditions.

[25] Ms Petrus for the respondent submitted that the appellant bore the onus to show on a preponderance of probability that he is a candidate for bail. Counsel restated the law applicable to bail appeals and submitted that there was no misdirection on the part of the magistrate.

[26] She further pointed out that the appellant is facing a serious charge. She went on to highlight a number of factors for consideration, namely, the victim is 9 years old, at the time of the incident, she was staying in the house of the appellant and his wife, the appellant was a guardian to her, the victim was sexually assaulted, the victim identified the appellant as the perpetrator, that at the time of the incident, the victim was only with the appellant and a 2-year-old boy in the house, the victim is now traumatised and is receiving counselling from social workers, rape is a prevalent offence, that the public expects the state to protect vulnerable victims, that if convicted the appellant would receive a custodial sentence.

[27] In addition, counsel argued that while in detention, the appellant was only allowed to communicate with his wife over the phone in order to bring him clothes and toiletries. And that, the second phone call was done in the presence of the investigating officer for the purpose of informing the appellant’s wife that he was coming to the house for the purpose of investigations. She contended therefore, that it is not correct that the appellant was not restricted from communicating with members of the public while in custody.

[28] Furthermore, Ms Petrus argued that the appellant’s version that he was allowed to roam freely for 30 days before arrest was never put to the investigating officer during his testimony.

[29] It was counsel’s submission that, notwithstanding the fact that the appellant is aware of the allegations against him, he merely indicated that he would not disclose his defence. She went on to submit that a bail application is not the occasion when the prosecution has to prove the guilt of the accused. Rather, what it has to do is to demonstrate through credible evidence, the strength or apparent strength of its case. It was further contended that if a court finds that there is a prima facie case made against the accused person, the court is entitled to refuse bail even if there is a remote possibility that an accused would abscond or interfere with state witnesses or with police investigations.

[30] Counsel concluded that the magistrate considered all the relevant factors and exercised her discretion judiciously.

Discussion

[31] Bail appeals are governed by s 65 (1)(a) of the CPA which provides that:

‘An accused who considers himself aggrieved by the refusal by a lower court to admit him to bail or by the imposition by such court of a condition of bail, including a condition relating to the amount of bail money and including an amendment or supplementation of a condition of bail, may appeal against such refusal or the imposition of such condition to the superior court having jurisdiction or to any judge of that court if the court is not then sitting.’

[32] In addition to the above, s 65(4) of the CPA provides:

‘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.’

[33] The implication of s 65(4) above was explained by Hefer J in S v Barber,⁸ approved in S v Timotheus,⁹ as follows:

'It is well known that the powers of this Court are largely limited where that 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.’¹⁰

[34] In Van Wyk v S,¹¹ Liebenberg J had the following to say:

‘[8] What should be emphasised is 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. It is further trite 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 should be granted bail.¹² This translates that an applicant must place before a court reliable and credible evidence in discharging this onus.’

[35] It appears from the appellant’s grounds of appeal that he raises issues on appeal which were not properly canvassed during the bail proceedings. For instance, the appellant contends that the court a quo failed to take into consideration the improper motive the complainant may have to lay criminal charges against him. We find that there was no basis for the court a quo to consider this argument as the appellant never testified about any improper motive on the part of the complainant. The issue of ‘bad blood’ was only suggested in cross-examination of the investigating officer by counsel for the appellant.¹³

[36] Similarly, the appellant argued that the court a quo erred when it found that the state discharged the onus of proving a prima facie case against the appellant, notwithstanding, among others, the evidence of the investigating officer who could not dispute that the alleged victim was seen playing and frolicking a mere two days after the alleged rape. There was similarly no evidence presented in that regard, nor did the appellant testify to that effect. This issue only came up during cross-examination of the investigating officer by counsel for the appellant.¹⁴

[37] Although counsel for the appellant quite correctly submitted that the state did not have as one of its grounds for objecting to bail, the fear that the appellant may abscond, the court a quo’s decision was not solely based on such determination and this issue is not to be considered in isolation.¹⁵

[38] The court a quo was aware of the applicable principles, which provide that the court must attempt to strike a balance between preserving the individual's right to liberty and safeguarding the proper administration of justice. Furthermore, the court a quo noted that, where possible, the court will lean in favour of the liberty of the applicant and grant bail.

[39] The court a quo further held that the charge of rape, particularly involving a minor, is an extremely serious offence in respect of which the law prescribes severe penalties. In this matter, the charge the appellant is facing falls under Part IV of schedule 2 of the CPA.

[40] In addition, the court a quo found that the state’s evidence, including the victim’s statement and the corroborating medical report, suggests a strong case against the appellant. The court a quo noted that a strong prima facie case can be a decisive factor in bail decisions.¹⁶ Notwithstanding the fact that the appellant is aware of the allegations against him, he opted to exercise his right to remain silent and only disclose his defence at trial. His mere denial did not in any way discredit the state’s prima facie case.

[41] The court a quo went on to state that the public outcry and media attention surrounding the matter as well as the presence of community members in court underscored a high public interest in the matter. With reference to case law, the court a quo pointed out the need to consider the public interest in maintaining the integrity of the legal process, and observed that bail should not be granted if it undermines public confidence in the justice system.¹⁷

[42] Furthermore, the court a quo held that, given the appellant’s close relationship with the victim and other potential witnesses, there was a significant risk of interference. The court made reference to S v Bennett¹⁸ wherein the court held that the potential for the accused to interfere with witnesses or the investigations justifies the denial of bail.

[43] It is trite that the appellant bears the onus of proof on a balance of probabilities that he is a good candidate for bail. During the bail application, there were pertinent questions the public prosecutor posed to the appellant, which he did not adequately address:

‘I will then inform you that after your arrest there was a lot of media frenzy, do you have any comment to that? --- Okay.¹⁹

I will put it to you that since there has been a public outcry, it would not be in the interest for you to be granted bail. What do you have to say on that? --- I say nothing to that.²⁰

I also put it to you that the granting of your bail may undermine the administration of justice, do you have anything to say to that? --- No comment.²¹

I will also put it to you that since there were witness statements not obtained yet, you may interfere with ongoing investigations. Do you have any response to that? --- No comment.’²²

[44] The court a quo exercised its discretion to deny bail after determining that the appellant was facing a serious charge, for which the state had a strong case, taking into account the public outcry and the likelihood of interference with witnesses or investigations.

[45] In S v Gustavo²³ the court held that:

‘[74] The purpose of s 61 was after all to afford the courts the power to refuse bail even if an accused has shown on a balance of probabilities that he or she will not abscond or interfere with the investigation or witnesses. The court is afforded the power to do so in the interest of the public or administration of justice. The statutory context and purpose in interpreting that phase is thus the context of a court exercising the power to refuse bail even where the court is satisfied that it is unlikely that an accused will abscond or interfere with the investigation.’

[46] Regard being had to the submissions by the parties, the ruling by the court a quo, as well as the applicable principles, the court is satisfied that the magistrate exercised her discretion properly, and cannot be faulted for refusing to grant bail on the facts before her.

[47] In the result, the following order is made:

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

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D C MUNSU

JUDGE

I agree

_________________

EE KESSLAU

JUDGE

APPEARANCES

For the Appellant: P Greyling

Of Greyling and Associates

Oshakati

For the Respondent: S Petrus

Of the Office of the Prosecutor-General

Oshakati.