Court name
Supreme Court
Case name
S v Koch
Media neutral citation
[2006] NASC 6





IN THEW SUPREME COURT OF NAMIBIA












CASE
NO.: SA 13/2005












IN THE SUPREME COURT
OF NAMIBIA








In
the matter between:
















HANS-JURGEN
GUNTHER KOCH



APPELLANT









and
















THE
STATE



RESPONDENT









CORAM:
Strydom, A.J.A., Chomba, A.J.A. et Damaseb, A.J.A.





HEARD
ON
: 29/09/2006 and 07/10/2006





DELIVERED
ON:
29/11/2006










APPEAL JUDGMENT













STRYDOM,
A.J.A.:
[1] Appellant is a German citizen permanently
residing in Namibia. Since December 1999 he has resided on his
farm, La Rochelle, in the Tsumeb district. By letter dated the 2nd
October 2002, the German Ambassador requested the Minister of Justice
for the extradition of the appellant.







[2] By means of this
letter the Minister was informed that an international warrant for
arrest had been issued by the Munich Municipal Court for the arrest
of the appellant pending his extradition to Germany. The letter
further informed the Minister that the appellant, through a borrowing
and lending scheme, fraudulently obtained money from various
municipalities by falsely representing to such municipalities that
the money so obtained was for short term loans and either pocketed
the money or used it to pay off long-term loans in order to utilize
the redemption on interest so generated. When the scheme collapsed
it left seven local authorities with a shortfall totaling DM
84.148.o47, 04. (Converted into N$ at the rate then applicable, it
came to N$420 million.)







[3] The letter continued
to set out that the appellant was also accused of falsifying
documents by altering cheques and transfer slips and that the
appellant, over a period of four years, committed offences in terms
of the German tax laws by evading payment of tax in the amount of
DM4.812.742,00 (approximately N$ 24 million.)







[4] The letter was also
accompanied by sworn statements, together with sworn translations
thereof, which, so it was claimed, provided clear evidence of the
offences committed. The letter also set out the various statutory
enactments in terms of which it was alleged the offences were
committed. Lastly certain undertakings were given which purported
to be in line with the provisions of sec. 5 of the Namibian
Extradition Act, Act No. 11 of 1996 (the Extradition Act).







[5] This letter set in
motion the proceedings for the extradition of the appellant. The
Minister of Justice (the Minister) authorized the Magistrate of the
district of Tsumeb to hold an enquiry in accordance with sec 12 of
the Act. It is common cause that the appellant was arrested on 14
October 2002 by members of the Namibian police and brought before the
magistrate on 16 October 2002. On this occasion the appellant was
denied bail. A formal bail application was again brought on 6th
November but met with the same fate. These proceedings took place
before magistrate Amutse.







[6] The extradition
enquiry commenced before magistrate Namweya, the magistrate for the
district of Tsumeb, on 19th March 2003. (How it came
about that magistrate Amutse was replaced by magistrate Namweya is
not clear). On this occasion the State handed in its documentary
evidence and the matter was then postponed to enable the defence to
study these documents. Apart from the documentary evidence, no
other evidence was placed before the court by the State.







[7] On the resumption of
the proceedings on 29th July 2003 the defence raised
various points in limine mostly dealing with the admissibility
of the documents handed in previously by the State. All these points
were rejected by the learned magistrate and the matter was further
postponed till 1st September 2003 when the appellant gave
viva voce evidence and was cross-examined by the prosecutor.
Judgment was delivered on the 4th September 2003 whereby
the appellant was committed to prison awaiting the Minister’s
decision in terms of sec. 16 of the Extradition Act.







[8] Notice of appeal
against his committal by the magistrate was delivered on 17th
September 2003. This appeal was to the High Court of Namibia as
provided by sec. 14 of the Extradition Act. When the matter was
heard the State, in turn, raised certain points in limine.
The Court, after considering judgment, dismissed these points and
filed its reasons on the 28th October 2004. The appeal
proper was then heard during October/November and was dismissed in
separate judgments delivered by the judges on 22 July 2005.







[9] Notice of an appeal,
alternatively a review, to this Court, was given by the appellant on
3rd August 2005. Notwithstanding this notice the Minister
attempted to extradite the appellant to Germany seemingly because he
was of the opinion that no further right to appeal existed. This
action prompted the appellant to apply for an urgent restraining
order which in turn resulted in an agreement by the parties to retain
the status quo and for both to apply for leave to appeal and
to cross-appeal to this Court.







[10] During this
application the State argued that the Extradition Act limited the
right to appeal to the High Court and that no provision was made for
a further appeal from that Court to the Supreme Court. Mainga, J,
agreed with the State and struck the matter from the roll. Van
Niekerk, J, found that an appeal lies from the High Court to the
Supreme Court in extradition matters and further found that no leave
to appeal, in such instance, was necessary, and consequently also
struck both applications from the roll.







[11] The matter before us
was argued over two days. Mr. Botes, assisted by Mr. Cohrssen,
appeared on behalf of the appellant. They appeared throughout the
proceedings, starting with the enquiry, for the appellant. Mr.
Small represented the Respondent (the State). He did not appear at
the enquiry but only became involved when the proceedings moved to
the High Court for the various hearings in that Court. The Court
is indebted to Counsel for their full and helpful arguments.







[12] Act 11 of 1996, so
far as could be determined, only on one previous occasion formed the
subject of judicial interpretation and that was in the case of S
v Bigione
, reported in 2000 NR 127, when the said Bigione
appealed against his committal for extradition to Italy. A Bench of
two Judges allowed the appeal. An important finding by that Court
was that sec. 18 of the Extradition Act must be interpreted against
the evidential regime applicable to Namibia and that evidence placed
before the magistrate holding the enquiry must be admissible and, as
far as written evidence was concerned, be in the form of sworn or
affirmed statements or depositions.








  1. At this stage it would
    be convenient to first deal with the cross-appeal by the respondent,
    the State, because if the Court should find that there is no right
    of appeal to the Supreme Court then that would be the end of the
    matter. The second issue raised by the cross-appeal was whether
    the evidence given at bail proceedings formed part of the evidence
    of the enquiry. The question must be determined at this stage so
    that the Court, if the appeal proceeds, must know what evidence is
    relevant.









  1. The first point, namely
    the jurisdiction of this Court to hear the appeal, was raised by the
    respondent at the time when both parties thought it wise to apply
    for leave to appeal to this Court. The Court a-quo was
    divided on this point. Mainga, J, agreed that no further appeal
    was possible whereas Van Niekerk, J, concluded that there was a
    right to appeal directly to this Court. Both Judges in helpful and
    well reasoned judgments set out what the law was in their opinion.
    Mainga, J, concluded that the Extradition Act did not provide for
    any appeal to the Supreme Court on the basis that no such specific
    provision was made in the Act. In fact, according to the learned
    Judge, certain provisions of the Act excluded such possibility and
    the possibility that such provision could be implicated into the
    Extradition Act.









  1. The main contentions of
    Mr. Small were, firstly, that there was no express provision which
    provided for further appeals to the Supreme Court, which would have
    been necessary if that was the intention of the Legislature.
    Secondly that there were clear indications in the Act itself which
    excluded such an intention. Reference to various provisions of the
    Act was made by Counsel.









  1. Whether an appeal lies
    to the Supreme Court will depend on an interpretation of the
    Extradition Act and the High and Supreme Court Acts, Acts 16 and 15
    of 1990.









  1. Before embarking on this
    task it is perhaps necessary to set out the scheme implemented by
    the Extradition Act. Sec. 4 of the Extradition Act states that
    extradition of persons may only take place in regard to those
    countries which have entered into extradition agreements with
    Namibia or countries which have been specified by the President by
    proclamation in the Gazette for purposes of this Act. It is
    common cause that the Federal Republic of Germany is such a country
    specified in the Gazette. (See Proclamation 22 of 2001).









  1. Extradition proceedings
    are set in motion by a request from a country for the return of a
    person or persons. (Sec. 7). Such request must be accompanied by
    certain particulars and documents as prescribed by Sec. 8. If the
    Minister is satisfied that the return of a person can lawfully be
    made in accordance with the Act he forwards the request and
    documents to a magistrate and issues to that magistrate an authority
    in writing to hold an enquiry. One such document which accompanies
    the request is an external warrant of arrest and if the magistrate
    is satisfied that the warrant is duly authenticated, he endorses the
    warrant which can then be executed anywhere in Namibia. (sec. 10).









  1. The next step is the
    holding of an enquiry in terms of sec. 12 of the Extradition Act.
    Sec. 12 provides for the procedure applicable at such an enquiry and
    further authorises the Prosecutor-General, or anyone delegated by
    her, to appear at the enquiry or at any proceedings in the High
    Court under the Extradition Act. Sec. 12 grants to the magistrate
    the same powers which he or she would have had at a preparatory
    examination so held, including the power to commit the person and to
    grant bail.









  1. Sec. 12 (5) sets out
    what the magistrate must consider in deciding whether to commit or
    discharge a person. Once the magistrate is satisfied that there was
    due compliance with the sub sec. he commits the person. Once a
    person is committed he or she is kept in prison to await the
    Minister’s decision in terms of sec. 16 of the Extradition Act.
    Sec. 21 provides that no bail shall be granted to a person committed
    by the magistrate.









  1. Section 14 of the Act
    provides for an appeal to the High Court and it is necessary to set
    out the section in full:








14. (1) Any person or
the government of the requesting country concerned may, within 14
days from the date of an order made in terms of section 12, appeal to
the High Court against that order, and the High Court may, upon such
appeal, make such order in the matter as it thinks the magistrate
ought to have made.







(2) In considering an
appeal under subsection (1) the High Court may order the discharge of
the person who has been committed to prison under section 12(5) if it
is of the opinion that, having regard to all the circumstances of the
case, it would be unjust to return such person by reason of -








  1. the violation of any
    provisions of Part II









  1. the trivial nature of
    the offence concerned;









  1. the lapse of time since
    the commission of the offence concerned or since the person
    concerned became unlawfully at large, as the case may be; or









  1. the accusation against
    the person concerned not having been made in good faith or in the
    interest of justice.”










[22] It is correct, as
was argued by Mr, Small, that no express mention was made of an
appeal to the Supreme Court of Namibia but neither was there an
express exclusion of such an appeal. The question remains whether,
bearing in mind also the provisions of other legislative Acts, such
as Acts l5 and 16 of 1990, it can be found that such an appeal is
possible or not. The relevant provisions in these acts are sec. 18
of Act 16 of 1990 and sec. 14 of Act 15 of 1990. They provide as
follows:







  1. The
    relevant part of sec. 18 is:













18(1) An appeal from a
judgment or order of the High Court in any civil proceedings or
against any judgment or order of the High Court given on appeal
shall, except in so far as this section otherwise provides, be heard
by the Supreme Court.







(2) An appeal from any
judgment or order from the High Court in civil proceedings shall lie
-









    1. in the case of that
      court sitting as a court of first instance, whether the full court
      or otherwise, to the Supreme Court, as of right, and no leave of
      appeal shall be required;











    1. in the case of that
      court sitting as a court of appeal, whether the full court or
      otherwise, to the Supreme Court if leave to appeal is granted by
      the court which has given the judgment or has made the order, or in
      the event of such leave being refused, leave to appeal is granted
      by the Supreme Court.”
















  1. The
    relevant part of sec 14 of the Supreme Court Act states as follows:













14(1) The Supreme
Court shall, subject to the provisions of this Act or any other law,
have jurisdiction to hear and determine any appeal from any judgment
or order of the High Court and any party to any such proceedings
before the High Court shall if he or she is dissatisfied with any
such judgment or order, have a right of appeal to the Supreme Court.








  1. The right of appeal to
    the Supreme Court –








(a) …..



(b) shall be subject to
the provisions of any law which specifically limits it or
specifically grants, limits or excludes such right of appeal, or
which prescribes the procedures which have to be followed in the
exercise of that right.”















  1. Of importance now is the
    nature of an enquiry in terms of the Extradition Act. In this
    regard the parties were also ad idem that it is neither civil
    nor criminal in nature but that it is something sui generis
    which has to be dealt with by the dictates of its own provisions.
    I therefore agree with Mr. Cohrssen, but for the provisions of sec
    14 of the Act, no appeal would lie to any of the Courts of Namibia.
    The committal by the magistrate in the extradition proceedings is
    not appealable in terms of the provisions of the Magistrate’s
    Court Act, as the magistrate did not act as a court. (See sec. 83
    read with sec. 48 of the Magistrate’s Court Act, Act 32 of 1944 as
    amended). The committal is also not a conviction by a lower court
    or a decision given in favour of an accused by a lower court in
    terms of the Criminal Procedure Act, Act 51 of 1977. (See sec. 309
    and 310). Legislation was therefore necessary to create an appeal to
    the High Court. That was achieved by sec 14 of the Extradition
    Act. Sec. 14 did not set up, for purposes of appeals in
    extradition matters, some sort of a special court. In terms of the
    section an appeal lies to the High Court and when that Court
    pronounces upon the appeal it does so as the High Court of Namibia
    established in terms of Act 16 of 1990 with the powers set out in
    the Act. Its pronouncement is a judgment or order which judgment
    or order would be subject to appeal to the Supreme Court as any
    other order or judgment given by the Court unless, by statute, such
    appeal is excluded. For purposes hereof I will accept that such
    exclusion can also be by implication.









  1. Whether there is such an
    exclusion can, so it seems to me, only exist in terms of the
    provisions of the Extradition Act or the provisions of the Supreme
    or High Court Acts and more particularly the relevant sections
    referred to above and set out in sec. 14 and sec. 18 of those Acts.









  1. Because of the origin of
    this appeal, being an enquiry which can neither be characterised as
    civil nor criminal, it seems to me that one would be hard put to
    find that an appeal from the decision of the High Court to the
    Supreme Court can be brought under sec 18(1) of Act 16 of 1990.
    However I need not decide the issue as I am of the opinion that sec.
    14(1) of Act 15 of 1990 is wide enough to include an appeal such as
    the present.









  1. Sec. 14(1) grants a
    right of appeal from any judgment or order from the High Court to
    any party to such proceedings. The right of appeal is only limited
    subject to the provisions of the Act itself or any other law. No
    provision of Act 15 of 1990 disavows the right of appeal in this
    instance and the only other possibility left would be the
    Extradition Act.









  1. Mr. Small, in his able
    argument, submitted that sec. 14 did not create any substantive
    right to appeal. By comparison Counsel referred the Court to sec
    21 of Act 59 of 1959 of South Africa whereby the jurisdiction of
    that Court of Appeal was set out and pointed out that the section,
    which started with the words “In addition to any jurisdiction
    conferred upon it by this Act”, left no doubt that it was intended
    to be a substantive provision granting wide jurisdiction to that
    Court.









  1. The full text of sec
    21(1) is as follows:








In addition to any
jurisdiction conferred upon it by this Act or any other law, the
appellate division shall, subject to the provisions of this section
and any other law, have jurisdiction to hear and determine an appeal
from any decision of the court of a provincial or local division.













  1. Although the wording of
    this section differs to a certain extent from that of sec 14(1) of
    Act 15 of 1990 the effect thereof, by granting a right of appeal
    from any decision of a provincial or local division, subject
    to the same constraints as the Namibian Act, is very much the same.
    I do not think that Courts in South Africa would have interpreted
    the section any differently if the words "In addition to any
    jurisdiction conferred upon it by this act or any other law"

    were not a part of the section. It is not these words which
    determine the jurisdiction of the Court but the words "an
    appeal from any decision of the court of a provincial or local
    division".









  1. Mr. Small further relied
    on the case of S v Absalom. That case is in my opinion
    relevant because it demonstrates the wide powers given under section
    21 of the South African Act and, by comparison, its equivalent, sec.
    14 of the Namibian Act. In that case the Appeal Court decided that
    a person, whose application for condonation for the late filing of
    his notice of appeal from his conviction and sentence in a
    magistrate's court, was unsuccessful in the High Court, had a right
    of appeal to the Appellate Division because of the wide import of
    sec. 21. Because no provision was made in the Criminal Procedure
    Act for such an appeal sec. 21 was the means whereby an aggrieved
    party could appeal to the Appellate Division. The Court,
    Grosskopf, JA, invoked sec. 21(1) of that Act and concluded that the
    appellant did not need leave to appeal in order to get before the
    Appeal Court.









  1. In Namibia the position
    is the same and in terms of sec 14(1) of Act 15 of 1990, a right of
    appeal lies directly to the Supreme Court without necessarily first
    applying for leave to appeal. (See S v Absalom, 1989
    (3) SA 154 (AD).









  1. It is correct, as was
    argued by Mr. Small, that the jurisdiction of the Supreme Court set
    out in sec. 14 is also subject to certain limitations where such
    limitations are brought about by other legislation, or by the
    section itself. See S v Deli, 2001 NR 286 (SC) at
    293 C-E. However where no such limitation by any other
    legislation exists, and where such appeal lies to the Supreme Court
    in terms of the provisions of sec. 14(1), the aggrieved party has an
    unlimited right of appeal.









  1. It is then necessary to
    determine whether the Extradition Act grants, limits or excludes
    such right.









  1. Mr. Small contended that
    an appeal to the Supreme Court is excluded because there is no
    specific grant of such a right by the provisions of the Extradition
    Act and because various provisions clearly exclude such a right.
    The sections of the Extradition Act relied upon by Counsel are
    sections. 12(3), (5), 13, 14 and 16. To this can be added sec
    21(b).









  1. I have already pointed
    out that there is no specific grant or exclusion, in the sense of a
    provision stating that a further appeal shall lie, or not lie, to
    the Supreme Court, set out in the Extradition Act. Furthermore
    that, but for the provisions of sec. 14, there would be no appeal to
    any of the Courts of law in Namibia . Sec. 14 is therefore the
    source for any appeal to the Courts.









  1. In her judgment Van
    Niekerk, J, referred to various legislative Acts where no specific
    provision was made for appeals from provincial or local divisions of
    the Supreme Court of South Africa to the Appellate division but
    where it was notwithstanding found that a right of appeal, either
    directly or with leave, lay to the Appellate Division. See such
    cases as Ex parte Crous,1938 AD 334; Oryx Mining
    and
    Exploration (Pty) Ltd v Secretary
    for Finance,
    1999 NR 80 (SC) (also reported in
    1991 (4) SA 873 (NmSC) and S v Thornhill, 1998 (1)
    SACR 177 (CPD). The learned Judge a quo pointed out
    that in the latter case the Cape Supreme Court (the equivalent of
    our High Court) was dealing with the South African Extradition Act,
    which, in its sec 13, is very similar to our sec 14 as it only
    provided for an appeal from the magistrate, holding the enquiry, to
    the provincial or local division of the Supreme Court. Dealing
    with an application for bail pending the outcome of an appeal
    against his committal by a magistrate, and the dismissal of that
    appeal by the Provincial Division of the Supreme Court, the Court,
    albeit obiter, was satisfied that a right of appeal existed
    to the Appellate Division.









  1. In my opinion the above
    cases at least refute Mr. Small’s contention that no appeal lies
    to the Supreme Court unless there is a specific grant of such a
    right in terms of the Extradition Act.









  1. The learned Judge a
    quo
    also referred to certain cases where it was concluded that
    the right to appeal to the Supreme Court of South Africa (Appellate
    Division) was excluded by the wording of the Legislative Acts
    which granted a right of appeal from a Minister or Institution to
    the Provincial or Local Division of the Court of jurisdiction.









  1. These cases are: The
    Minister of Labour v. Building Worker’s Industrial Union, 1939 AD
    328;
    Minister of Labour and Another v Amalgamated Engineering
    Union, 1950 (3) SA 383 AD
    and Munisipaliteit van
    Windhoek v Ministersraad van Suidwes Afrika en ‘n Ander, 1985 (2)
    SA 907 (AA).









  1. In each of the above
    cases the relevant legislation allowed for an appeal, in the first
    two cases from a decision of the Minister of Labour, and in the
    latter case from the Council of Ministers, to the Provincial or
    Local Division with jurisdiction. In the latter case the appeal lay
    to the Supreme Court (S.W.A. Division). On further appeals to the
    Appellate Division that Court decided, on the wording of the various
    legislative Acts, that appeals were limited to the Provincial or
    Local Divisions of the Courts of jurisdiction. As a result the
    matters were struck from the roll.









  1. In the first two cases
    the Appellate Division was called upon to interpret sec. 77 of the
    Industrial Conciliation Act, Act No. 36 of 1937. In the Building
    Workers
    case, Centlivres, JA, who wrote the judgment, stated the
    following at p 332 - 333:








That section, after
providing for an appeal from the Minister to any Division of the
Supreme Court, enacts that the decision of the Division to which
appeal is made ‘shall for the purposes of the Act be deemed to be
the decision of the Minister’. Section 16(2) says the Minister’s
decision on an appeal from the Industrial Registrar shall for the
purposes of the Act be deemed to be the decision of the Registrar.
From all this it follows that the decision of a Provincial or Local
Division given on appeal from a decision of the Minister under sec.
16 is deemed to be the decision of the Minister, which decision is in
turn deemed to be the decision of the Registrar for the purposes of
the Act…… Had the Legislature intended that there should be a
further right of appeal from a decision given by a Provincial or
Local Division under s 77 it would have enacted that the decision of
the Court hearing the further appeal should be deemed to be the
decision of the Minister. This it has not enacted.







The language of sec. 77
is clear and unambiguous. It precludes all notion of a further
appeal to any other tribunal for it says unmistakenly that the
decision of the Division to which the appeal is made – in this case
the Transvaal Provincial Division – shall be deemed to be the
decision of the Minister. From this it follows that the decision of
any other tribunal can have no legal effect.”












[44] This interpretation
of sec. 77 was again applied in the Amalgamated Engineering -
case with a similar result.








  1. In the Munisipaliteit
    van Windhoek-
    case, supra, section 77 of Ord. 35 of 1952
    provided that where an appeal is made to the Supreme Court of South
    West Africa from a decision of the Council of Ministers, the
    decision of the Court shall be deemed to be the decision of the
    Council of Ministers. With reference to Proclamation 222 of
    1981, the predecessor to Act 16 of 1990, and more particularly
    section 14 (1) and 14 (2)(c) thereof, which latter section
    provided that any right to appeal was subject to “any law which
    specifically limits that right”, the Appellate Division, applying
    its reasoning in the two Labour matters, concluded that the
    Ordinance limited the right of appeal to the Supreme Court of South
    West Africa.









  1. That a deeming
    provision, such as contained in the relevant legislation of the
    three mentioned cases, brought finality, as far as the right to
    appeal was concerned, is now settled law. It was because of the
    absence of similar or other provisions in the Tax Act, Act 24 of
    1981, indicating that an appeal to the Supreme Court of South West
    Africa was final, that the Supreme Court of Namibia came to the
    conclusion that a further appeal lay from the Full Bench of the High
    Court to the Supreme Court of Namibia. That was after the Full
    Bench had dismissed an appeal from a Special Tax Court. See the Oryx
    Mining-
    case, supra. Mahomed, AJA, (as he then was)
    stated as follows on p 87J - 88B:








Secondly, the element
of finality suggested in s 77(2) of the Industrial Conciliation Act
by the deeming provision, attaches to the decision of the Division of
the Supreme Court to which the appeal is made in terms of s 77 (a
Provincial Division). In the case of the Income Tax there is no
corresponding provision which attaches finality to the decision of
the Division of the Supreme Court to which an appeal is made in terms
of s 76. All that s 73(18) states is that any decision of the
Special Income Tax Court in terms of s 73 shall (subject to the
provisions of s 76) be final. The Legislature could easily have
said, if such was its intension, that the decision of the Court to
which appeal is made in terms of s 76(2), shall be final.”













  1. I agree with Van
    Niekerk, J, and Mr. Cohrssen that if it was the intention of the
    Legislature to limit appeals to the High Court only it would have
    said so. In fact nothing in sec. 14 can be construed as
    constituting the High Court the final court of appeal in matters
    under the Extradition Act. The order made by the Court on appeal
    from the magistrate is not deemed to be that of the magistrate and
    the Court is free to make any order it thinks the magistrate ought
    to have made.









  1. In the absence of any
    contrary indications it can be accepted that the Legislature was
    aware of these four decisions, more particularly those originating
    in Namibia. The Extradition Act was promulgated subsequent to all
    the above cases and it can therefore be accepted that the
    Legislature was aware of the import of these cases. By not in any
    way limiting the right of appeal in sec. 14, it can be accepted that
    the Legislature intended that further appeals should lie to the
    Supreme Court. (See Ex parte Minister of Justice: In re Bolon,
    1941 AD 345 at 359-60
    and Die Munisipaliteit van
    Windhoek–
    case, supra, at p 920 E-F).









  1. A clear indication that
    the Legislature was aware of the import of cases such as the
    Windhoek Munisipaliteit-case, supra, is to be found in
    the Immigration Control Act, Act 7 of 1993. Mr. Small found support
    for his contention that there should be specific provision to appeal
    to the Supreme Court in Sec. 47 of the Immigration Control Act, and
    more particularly ss (5) and (6) thereof. However a reading of
    these sections shows precisely the opposite.









  1. Section 47 (1) provides
    that a tribunal may of its own motion, or shall at the request of a
    person affected by an application made in terms of sec. 44 or of an
    immigration officer, reserve a point of law for decision by the High
    Court. Ss. 4(a) empowers the High Court to call for further
    information from the tribunal or person concerned and to give its
    decision by also taking into consideration the further information
    supplied (if any). (Sub. Sec 4(b))









  1. Ss. (4) (c) then
    provides as follows:








(c) Any decision of
the High Court under paragraph (b) setting aside the decision of a
tribunal shall, for all purposes, where the tribunal had, by the
decision so set aside, refused the granting of an application for
authorization for the removal of a person from Namibia under section
44, be deemed to be a decision of the tribunal concerned
authorizing the removal of that person from Namibia under that
section.”
(My emphasis)











  1. The Legislature clearly
    realised the effect of the deeming clause set out in ss. 4(c)
    and, because it intended to allow a further appeal to the Supreme
    Court, created that appeal by specifically providing therefor. See
    ss. (5) and (6) of sec 47. This was necessary in the light of the
    decisions referred to above.









  1. Mr. Small, in his heads
    of argument, also referred to other examples to show that an appeal
    to the Supreme Court, in instances like these, is only possible if
    there is a specific enactment to that effect. In this regard
    Counsel referred to sec 76(2) of the Income Tax Act, Act 24 of 1981
    and sec. 21 of the Labour Act, Act No 6 of 1992.









  1. Counsel is correct in so
    far as there would not have been any appeal to the Courts of
    Namibia, and not only the Supreme Court, if it were not for the
    specific enactments. This is so because Act 24 of 1981 and Act 6
    of 1992 both created special courts which were not ordinary Courts
    of law. In order to allow for appeals to the ordinary Courts such
    enactment was necessary and in that regard the various sections of
    the Acts played the same role as sec. 14 played in regard to the
    Extradition Act. In the case of the Tax Act and the Labour Act the
    said provisions were the bridging clauses to bring such appeals
    within the ambit of the ordinary courts of law and the reference to
    the Supreme Court was to nominate that Court as the Court of Appeal,
    instead of the High Court. In each instance the Supreme Court was
    substituted for either the High Court or the Full Bench.









  1. The reference to other
    sections of the Extradition Act does in my opinion not take the
    matter any further. If it were the intention of the Legislature to
    limit appeals to the High Court it would have said so by
    introducing a deeming provision or by stating that such an appeal
    would be final. And the place where this would be done would be
    sec. 14. The other sections referred to by Mr Small must be read
    against the background that the Legislature was aware of the state
    of the law and intended that aggrieved parties should have a right
    of appeal to the Supreme Court.. The reference only to sec. 14 of
    the Extradition Act in some of these sections is because sec. 14 is
    the source of the appeal in terms of the Extradition Act. Once
    an appeal was heard other Acts, namely the High Court Act and/or the
    Supreme Court Act, provide for a further appeal to the Supreme
    Court.









  1. As to the possibility
    that the Extradition Act by implication excludes further appeals to
    the Supreme Court in lieu of the sections referred to by Mr. Small,
    seems to me not to be the case. In the course of his judgment in
    the matter of Rennie NO v Gordon and Another NNO, 1988(1) SA
    1 A at p. 22 D – H Corbett, JA, (as he then was) dealt with this
    issue and stated:








Over the years our
Courts have consistently adopted the view that words cannot be read
into a statute by implication unless the implication is a necessary
one in the sense that without it effect cannot be given to the
statute as it stands.”












  1. In my opinion there is
    no need to read words into the Extradition Act which would exclude
    further appeals to the Supreme Court in order to give effect to the
    statute.









  1. I have therefore come to
    the conclusion that in terms of the Extradition Act appeals in terms
    of sec. 14 of the Act are not limited to the High Court only but
    that aggrieved parties have a right of appeal to the Supreme Court.









  1. I turn now to the
    cross-appeal of the State. The cross-appeal was filed late in
    terms Rule 5(3) of the Rules of the Supreme Court. However an
    application for condonation was filed and because of the importance
    of this matter to the respective parties we allowed Mr. Small to
    address us on this issue.









  1. The cross-appeal
    concerns two points, which were taken in limine by the State
    when the matter came on appeal from the committal of the magistrate
    to the High Court. The two points raised were, firstly, that the
    record of proceedings was not complete. In this regard Mr. Small
    mainly submitted that the bail proceedings before magistrate Amutse
    were part of the enquiry which was held before magistrate Namweya,
    and should therefore have been included in the record of appeal.
    The second point was that the proceedings were a nullity because
    magistrate Amutse was the magistrate authorized to hold the enquiry
    and that magistrate Namweya could therefore not take over the
    proceedings. This second point was not argued before us but
    Counsel reserved the right to rely on certain aspects thereof in so
    far as it may support his contention in regard to the record.
    This latter point was dismissed by Van Niekerk, J, in a well
    reasoned judgment with which I agree. As the State is seemingly in
    agreement with that judgment, except for the limited way indicated
    by Mr. Small, I need not add anything more.









  1. It is trite that an
    appellant is responsible for placing the full record of proceedings
    in the lower Court before the Court of Appeal. Failure to do so
    may have dire consequences for an appellant. As was pointed out by
    Counsel it may cause an appeal to be postponed or to be struck from
    the roll.









  1. After the request for
    the extradition of the appellant was received by the Minister of
    Justice, the latter authorized the magistrate of Tsumeb in terms of
    sec 10 (1) of the Extradition Act to hold an enquiry. From the
    record it seems that bail proceedings were first conducted and that
    these proceedings were held before magistrate Amutse who denied
    bail.









  1. Thereafter, and on the
    19th March 2003, the matter came before magistrate
    Namweya who was informed by the prosecutor that this was the start
    “of the actual enquiry”. On that occasion the documents
    forming the record of the proceedings were handed in and the matter
    proceeded to its conclusion on the 4th September 2003.
    No attempt was made by the State, at any stage during the
    proceedings, to hand in the record of the bail proceedings. From a
    reading of the record it is clear that all the parties regarded the
    bail proceedings as separate proceedings not forming part of the
    formal extradition enquiry. That lead was followed by the
    magistrate who did not rely, for any of his findings, on evidence
    given at the bail proceedings.









  1. Given this background a
    contention that the evidence given during the bail proceedings
    should form part of the record, on which this Court must now
    determine the appeal, is by itself a stumbling block which would
    not be easily overcome. No explanation could be given by Counsel,
    why, if it were the view of the State that the evidence at the bail
    proceedings formed part of the enquiry, no attempt was made to make
    those proceedings part of the enquiry. However Mr. Small did not
    contend that the record of the bail proceedings should be accepted
    into the enquiry purely for its evidentiary value, if any.









  1. The submission of Mr.
    Small is based on sec. 10(1) -10(4) and 12(1) and 12(2) of the
    Extradition Act. Sec. 10(1) provides for the authorization by the
    Minister of Justice to a magistrate to hold an enquiry and the
    procedure to bring such person before the magistrate. According
    to sec 12(1) it is the authorized magistrate who shall hold the
    enquiry and sec 12(2) determines that such enquiry shall proceed in
    the manner in which a preparatory examination is held in the case of
    a person charged with having committed an offence in Namibia. It
    is indeed sec 12(2), as was submitted by Mr. Small, which enables
    the magistrate presiding at the enquiry, to grant or refuse bail.









  1. As I understood Counsel
    the fact that only the magistrate who is authorized to hold the
    enquiry can deal with any of the issues, including bail, it follows
    that the enquiry starts as soon as the magistrate is seized with the
    matter. Consequently it must be accepted that evidence given at
    bail proceedings form part and parcel of the enquiry.









  1. I do not agree with
    Counsel. The nature of the proceedings in the bail application and
    in the enquiry differs markedly from one another. The result is
    that much of the evidence given in the one would be irrelevant to
    the other. As was pointed out by Mr. Cohrssen, bail proceedings,
    whether as part of criminal proceedings or in terms of the
    Extradition Act, are also conducted by different rules of
    evidence. Bail proceedings may contain highly prejudicial matter,
    such as hearsay evidence and evidence of previous convictions or
    evidence of a propensity to commit crimes.






  1. Furthermore Sec. 12(5)
    of the Extradition Act sets out what the magistrate, holding the
    enquiry, should satisfy himself about before committing a person.
    These are:








(a) the offence to
which the request in question relates is an extraditable offence;







(b) the country
requesting the return of the person concerned is a country
contemplated in section 4(1);







(c) the person brought
before him or her at the enquiry is the person who is alleged to have
committed such extraditable offence in such country or to be
unlawfully at large after conviction for an extraditable offence in
such country;







(d) in the case of a
person being accused of having committed an extraditable offence, the
evidence adduced would be sufficient to justify the committal for
trial of the person concerned if the conduct constituting the offence
had taken place in Namibia; and







(e) the return of the
person concerned has been requested in accordance with this Act and
that the return of that person is not prohibited under Part II.”












  1. The above requirements
    clearly illustrate what the enquiry is about and have little or no
    relevance to proceedings for bail. What is more, an application
    for bail can be made at any time during the enquiry it need not
    always be before the start of the enquiry. It may even be after
    the conclusion of the enquiry and whilst the magistrate is
    considering whether to commit or not to commit the person. As was
    pointed out by the Court a quo with reference to sec. 138 of
    the Criminal Procedure Act, Act 51 of 1977, the magistrate hearing
    the bail application may not be the magistrate holding the enquiry,
    as in fact happened in this instance.









  1. There is further nothing
    in the Extradition Act to indicate that it was the intention of the
    Legislature that evidence given in bail proceedings should form part
    of the evidence given at the enquiry. I am therefore of the opinion
    that the bail proceedings do not form part of the enquiry and that
    it does not matter whether and at what stage of the proceedings such
    application was brought and whether it was brought before the same
    magistrate or before a different magistrate, bail proceedings remain
    a separate proceeding and is not part of the enquiry.









  1. I have consequently come
    to the conclusion that the cross-appeal cannot succeed and it is
    dismissed.









  1. This brings me to the
    appeal by the appellant. The attack against the committal of the
    appellant by the magistrate and the dismissal of the appeal by two
    Judges of the High Court is based on multiple grounds which can
    conveniently be divided into two main grounds, namely the lack of
    authentication and consequent inadmissibility of documents and
    whether the evidence given constituted a prima facie case
    which justified the committal of the appellant.









  1. Although an enquiry for
    the extradition of a person strongly resembles a criminal trial it
    is neither that nor a civil matter. According to the cases it must
    be seen as sui generis. (See Geuking v President of the
    Republic of South Africa and Others,
    2003 (1) SACR 404 (CC) at
    416). The magistrate holding the enquiry is not called upon
    to find either guilt or innocence or to find what defences were or
    could be established on behalf of the person to be extradited.
    After the enquiry the magistrate must satisfy himself as to the
    requirements set out in sec 12(5) of the Act and if so satisfied he
    shall issue an order for the committal of such person to
    prison awaiting the decision of the Minister.









  1. The Act itself provides
    what documents can be placed before the magistrate. This is set
    out in section 8 of the Act which reads as follows:








8(1) Notwithstanding
the terms of any extradition agreement which may be applicable, a
request made under section 7 shall be accompanied–







(a) by the full
particulars of the person whose return is requested and
information, if any, to establish that person’s location and
identity;








  1. by the full particulars
    of the offence of which the person is being accused or was
    convicted and in respect of which his or her return is sought, a
    reference to the relevant provisions of the law of the requesting
    country which were breached by the person and a statement of the
    penalties which may be imposed for such offence;








(c) by a statement or
statements containing information which set out prima facie
evidence of the commission of the offence contemplated in paragraph
(b) by the person whose return is requested;







(d) by the original or an
authenticated copy of the external warrant issued in relation to the
person whose return is requested; and








  1. ..








(2) …..








  1. Any document referred to
    in subsection (1) which is not drawn up in the English language
    shall be accompanied by a sworn translation thereof in that
    language.”














[76] Furthermore sec. 18
of the Act sets out the formal requirements for the acceptance of
such documents as evidence in the enquiry. This section provides as
follows:










18(1) No deposition,
statement on oath or affirmation taken, whether or not taken in the
presence of the person whose return has been requested, or any
document , or any record of any conviction, or any warrant issued in
a requesting country, or any copy or sworn translation thereof, may
be tendered under section 8 or be received in evidence at an appeal
under section 14 or an enquiry, unless such deposition, statement,
affirmation, document, record or warrant, or any copy or sworn
translation thereof –







(a) has been
authenticated in the manner in which foreign documents may be
authenticated to enable them to be produced in any court in Namibia
or in the manner provided for in the extradition agreement
concerned; or





(b) has been certified
as the original or as true copies or translations thereof by a judge
or magistrate, or by an officer authorized thereto by one of them,
of the requesting country concerned.







(2) Any -







(a) record of conviction
and sentence by a court of competent jurisdiction;







(b) statement by a
competent judicial or public officer of the law of a requesting
country; or








  1. deposition, statement,
    or affirmation which has been made, sworn or affirmed by any
    person,








which has been
authenticated or certified in the manner contemplated in subsection
(1) shall on its production in an appeal under section 14 or in
any enquiry be prima facie proof of the facts stated
therein.










  1. Section 18 is couched in
    peremptory language and no documents originating from a foreign
    country are to be received in evidence by either the magistrate
    holding the enquiry or any court on appeal unless such documents
    are authenticated in the manner prescribed by our rules or
    certified in the manner set out in the section.









  1. It was pointed out by
    Mr. Botes, who argued this part of the appeal, that this issue is
    dealt with by High Court rule 63 and that that rule and the
    magistrate’s court rules concerning authentication are essentially
    the same. The authentication, which is a process of verification
    of signatures appearing on foreign documents, is fully dealt with
    in the said rules. In certain instances the Court is relieved from
    requiring strict compliance with the Rule. That would be in
    instances where the Judge or magistrate is satisfied by other
    evidence that the signature appended is the signature of the person
    purported to have signed the document. This relaxation of the Rule
    does however not mean that the Judge or magistrate can do away with
    authentication altogether.









  1. It is common cause
    between the parties that at the enquiry before the magistrate no
    viva voce evidence was tendered by the State. The
    prosecutor was content to hand up a bundle of documents containing,
    inter alia, the warrant of arrest, depositions of witnesses
    and statements. It is further common cause that none of these
    documents were authenticated in terms of either the magistrate’s
    court rules or rule 63 of the Rules of the High Court.









  1. However, all the foreign
    documents contained what is called an Apostille which, so it was
    found by the Court a quo, substantially complied with the
    Rules of Court in regard to the authentication of the said
    documents. The use of Apostille came about in the following way.









  1. Part of the documents
    handed in at the enquiry was a letter from the Ministry of Foreign
    Affairs, Information and Broadcasting and a notification from the
    Ministry of Foreign Affairs of the Kingdom of the Netherlands, who
    is the depositary of the Convention Abolishing the Requirements of
    Legalisation for Foreign Public Documents, (the Convention), that
    the Republic of Namibia has acceded to the Convention with effect
    from 30 January 2001.









  1. The purpose of the
    Convention, as stated in its name, was to simplify proof of foreign
    documents and the authentication thereof for use in countries which
    have acceded to the Convention. The provisions of the Convention,
    in so far as they are relevant to these proceedings, are as follows:








Article 1







The present Convention
shall apply to public documents which have been executed in the
territory of one Contracting State and which have to be produced in
the territory of another Contracting State.







For the purposes of the
present Convention, the following are deemed to be public documents:








  1. documents emanating from
    an authority or an official connected with the courts or tribunals
    of the State, including those emanating from a public prosecutor, a
    clerk of a court or a process-server;








Article 2







Each Contracting State
shall exempt from legislation documents to which the present
Convention applies and which have to be produced in its territory.
For the purposes of the present Convention legalisation means only
the formality by which the diplomatic or consular agents of the
country in which the document has to be produced certify the
authenticity of the signature the capacity in which the person
signing the document has acted and, where appropriate, the identity
of the seal or stamp which it bears.







Article 3







The only formality that
may be required in order to certify the authenticity of the
signature, the capacity in which the person signing the document has
acted and, where appropriate, the identity of the seal or stamp which
it bears, is the addition of the certificate described in Article 4,
issued by the competent authority of the State from which the
document emanates.







Article 4







The certificate referred
to in the first paragraph of Article 3 shall be placed on the
document itself or on an 'allonge', it shall be in the form of the
model annexed to the present Convention.







It may, however, be drawn
up in the official language of the authority which issues it. The
standard terms appearing therein may be in a second language also.
The title 'Apostille (Convention de La Haye du 5 octobre 1961)' shall
be in the French language.















Article 5







When properly filled in,
it will certify the authenticity of the signature, the capacity in
which the person signing the document has acted and, where
appropriate, the identity of the seal or stamp which the document
bears.







The signature, seal and
stamp of the certificate are exempt from all certification.







Article 6







Each Contracting State
shall designate by reference to their official function, the
authorities who are competent to issue the certificate referred to in
the first paragraph of Article 3.







It shall give notice of
such designation to the Ministry of Foreign Affairs of the
Netherlands at the time it deposits its instrument of ratification or
of accession or its declaration of extension. It shall also give
notice of any change in the designated authorities.







Article 14







The present Convention
shall remain in force for five years from the date of its entry into
force in accordance with the first paragraph of Article 11, even for
States which have ratified it or acceded to it subsequently







If there has been no
denunciation, the Convention shall be renewed tacitly every five
years.







Article 15







The Ministry of Foreign
Affairs of the Netherlands shall give notice to the States referred
to in Article 10, and to the States which have acceded in accordance
with Article 12, of the following:









    1. the notifications
      referred to in the second paragraph of Article 6;











    1. the signatures and
      ratifications referred to in Article 10;











    1. ..











    1. the accessions and
      objections referred to in Article 12 and the date on which such
      accessions take effect;”
















  1. All the documents
    originating from the requesting country, namely Germany, were
    purportedly authenticated by the affixing of an Apostille to the
    statement or document as provided for by Article 4 of the
    Convention. All documents were in the German language but sworn
    translations of the contents thereof were made and provided by the
    requesting country. Also in regard to these sworn translations an
    Apostille was added seemingly to authenticate the capacity and the
    signature of the sworn translator. However none of the apostilles
    were translated. As far as the requesting country was concerned,
    they acted in terms of Article 4, which permitted Germany to draw up
    the Apostilles in its official language. When the documents were
    handed in at the enquiry the Apostilles in the German language were
    left untranslated.









  1. The documents tendered
    by the State at the enquiry consisted of the following:









  1. A warrant of arrest
    (Exhibit E) which provided the information required by sec. 8(a),
    (b) and (d).








(ii) A document emanating
from the department of Public Prosecutions Munich II (Exhibit F) and
signed by one Reichenberger, described in the document as a public
prosecutor. The document is not under oath and contains excerpts
of the relevant German law. It was tendered in terms of sec. 8(b)
and/or sec. 18(2)(b) of the Act.



(iii) Various documents
titled "written record" which are depositions of a number
of interviews held with witnesses by Judges in closed sessions.
These statements were tendered in terms of sec. 8(c) of the Act.








  1. The above documents were
    attacked by appellant’s Counsel on various grounds. It was
    submitted that the official language of Namibia, in terms of its
    Constitution, is English. Consequently the language of the Court
    is English and any other language must be properly translated in
    order to be accepted by the Court. Counsel therefore submitted
    that the Apostilles should have been translated and failure to have
    done so meant that none of the documents were properly
    authenticated. Counsel further submitted that there was no
    evidence that the Federal Republic of Germany acceded to the
    Convention or was still a Contracting State. This is important
    because only Contracting States could legalise documents in terms of
    the Convention. Mr. Botes also submitted that the document styled
    ‘certificate’ by the Public Prosecutor Reichenberger was not
    sworn to and neither was there evidence to qualify him as an expert
    in German law. Lastly Counsel submitted, in the alternative, that
    none of the documents were public documents and should therefore not
    have been accepted by the Court.









  1. I will deal with the
    last submission first. Counsel’s reference to cases such as
    Northern Mounted Rifles v O’Callaghan, 1909 TS 174,17
    and Ontwikkelingsraad Oos-Transvaal v Radebe & Others,
    1987 (1) SA 878 (T) shows in my opinion that Counsel is
    approaching this issue on the basis of the rules of evidence
    applicable to public documents proper. However that is not the
    scheme of the Convention. The Convention contains in Article 1 a
    deeming clause by which documents, which are in essence not public
    documents, are now deemed to be such for the purposes of the
    Convention. In S v Rosenthal, 1980 (1) SA 65 (AD) it was
    stated that the words “shall be deemed” used in a statute are to
    predicate that a certain subject matter shall be regarded or
    accepted for the purposes of the statute as being of a particular,
    specified kind whether or not the subject matter is ordinarily of
    that kind.









  1. Nevertheless Mr. Botes
    referred to the fact that the documents recording evidence which
    persons gave before a Judge in a closed session can by no stretch of
    the imagination be a public document and nor were such documents
    intended to be public documents as the interviews were conducted
    behind closed doors which militates against any notion of calling it
    public. If the rules relating to public documents proper are
    applied then Mr. Botes is right. However this is clearly an
    instance where the deeming clause, contained in Article 1 of the
    Convention, applies. In terms thereof documents emanating from an
    authority or official connected with the courts or tribunals of the
    State, including those emanating from a public prosecutor or a clerk
    of a court shall be deemed to be public documents. To my mind
    there can be no doubt that these documents were coming from an
    authority or an official connected with the courts or tribunals of
    the State, in this instance Germany, or from a public prosecutor or
    a clerk of a court.









  1. But said Counsel bearing
    in mind the meaning of the word emanate, the documents containing
    the interviews with witnesses emanated from the persons who were
    interviewed and not from an authority or an official connected with
    the courts or tribunals of the State. In this regard Counsel
    referred to the New Shorter Oxford English Dictionary, at
    page 802, where the following is stated regarding the meaning of the
    word emanate, namely "come (as) from a source; issue,
    proceed (from)".
    Counsel then submitted that the source
    of these depositions are the witnesses themselves and not an
    authority or official connected to the courts or tribunals of
    Germany.









  1. It seems to me that the
    meaning ascribed to the word ‘emanate’, by Counsel is too
    narrow. Used in a wider sense these documents did emanate from
    officials as provided for by the Convention. I can see no reason
    why the word connot mean ‘as coming from a source, being an
    authority or official connected with the courts etc.’ or that the
    documents emanated in the sense that it was issued by such an
    authority. After all the source from which the documents were sent,
    as I understand Article 1 of the Convention, was the clerk of the
    court or an official connected to the Court, and in that sense the
    documents emanated as provided for by the deeming clause. The
    purpose of the Convention was to, as far as possible, simplify the
    proof and authentication of documents emanating from authorities and
    officials connected with the courts. Giving the word ‘emanate’
    the meaning contended for by Counsel would greatly narrow down the
    ambit of the Convention which would not be permissible bearing in
    mind the purpose and wording of the Convention.









  1. I am therefore satisfied
    that this ground of appeal cannot succeed.









  1. At the enquiry, the
    magistrate, and again on appeal, before two Judges of the High
    Court, the Apostilles, whereby certain signatures were allegedly
    authenticated, were accepted although these instruments were in the
    German language and were not translated either by a sworn translator
    or otherwise. How this came about was the subject of much debate
    before us.









  1. Before dealing with the
    reasons for this acceptance of German Apostilles in a Court in
    Namibia it is necessary to look at our law in this regard. Article
    3(1)
    of the Constitution provides that English shall be the
    official language of Namibia. Following upon this it was accepted,
    correctly in my opinion, that all proceedings in any Court had to be
    in English. When a witness testified in Afrikaans, which was
    understood by some of the Judges or whether the witness testified in
    Oshiwambo, which is understood by other of the Judges, it was
    necessary to employ an interpreter to interpret such evidence into
    English. As far as documents are concerned, rule 60(1) of the High
    Court of Namibia provides:








60(1) If any document
in a language other than the official language of Namibia is
produced in any proceedings, it shall be accompanied by a
translation certified to be correct by a sworn translator.”








  1. Sections 29(1) and (2)
    of the High Court Act, Act 16 of 1990, dealing with commissions
    rogatoire, letters of request and documents of service originating
    from foreign countries, require that if such instrument is received
    by the Permanent Secretary for Justice, and it is in any other
    language than English, that it then be accompanied by a translation
    into that language.



  2. In the case of MFV
    Kapitan Solyanik Ukrainian-Cyprus Co and Another v Namack
    International (Pty) Ltd,
    1990 (2) SA 926 (NM HC), a Full
    Bench of the Namibian High Court accepted a rejection by the Judge
    of first instance, of affidavits containing jurats which
    were in Ukrainian and were untranslated. In this regard Hannah, J,
    who wrote the judgment of the Court, stated as follows:








The affidavits which
the appellants now seek to place before this Court differ in two
material respects from the documents which were rejected as evidence
by the Court a quo. In the first place the jurat at
the end of each affidavit is in English whereas in the earlier
documents what purported to be the jurat was in a foreign
language and had not been translated. In the second place the jurat
is in proper form whereas, as we now know, the purported jurat
in the earlier documents was in reality no jurat at all.
Obviously this latter fatal defect could only have been detected once
a translation had been made and the first question I have to ask is
why the appellant’s legal representatives did not notice that the
jurat
had not been translated when the documents were first
received. (p 932I – 932B).







But the position before
Frank J was that the appellants could not show that there had been
any compliance with Rule 6. They could not show that the written
statements had been attested at all. (p 934I – J).”










  1. I am mindful of the fact
    that in the above case no Convention existed but the Court accepted
    that documents in a foreign language should be translated. Apart
    from the fact that that is required by our Constitution and other
    legislation, it is also necessary to enable the Court to understand
    what has been written in the foreign language in order to determine
    its admissibility and compliance with the dictates of our law.



  2. In regard to
    translations the Extradition Act, sec. 8(3), requires that all the
    documents set out in the section, in so far as those documents are
    not drawn in the English language, shall be accompanied by a sworn
    translation thereof. In my opinion the Apostille forms an
    important part of the documents received in terms of sec. 8 of the
    Extradition Act.



  3. The importance of the
    Apostille is clear from the provisions of sec. 18 which forbid the
    acceptance of any of the documents unless such documents, together
    with any translations thereof, are properly authenticated in the
    manner in which documents may be authenticated in terms of the Rules
    of Court or has been certified in the way as set out in sec.
    18(1)(b). It seems to me that it is in the first instance the
    State which must ensure that there is proper authentication of the
    documents before handing them in at an enquiry. Secondly the Act
    expressly enjoins the magistrate, who holds the enquiry, not to
    accept such documents unless they are authenticated and lastly the
    section forbids the receipt of such documents in an appeal in terms
    of sec. 14.









  1. How then did it come
    about that the untranslated Apostilles were accepted by the State,
    the magistrate and the Judges of the High Court?









  1. After the documents were
    handed in at the enquiry by the State and after argument the
    magistrate dismissed the various points in limine raised by
    the defence. One of these points concerned the untranslated
    Apostilles. The State took its stand on the provisions of Article
    4 of the Convention and argued that because the State issuing the
    Apostille was permitted to do so in its official language, the
    receiving State was obliged to accept the untranslated Apostilles.
    After the magistrate gave his Ruling certain clarifications were
    sought by both parties. The Magistrate candidly admitted that he
    did not understand German and stated that he would only work on the
    English documents. After being pressed he stated that as far as
    the Apostilles were concerned he agreed with the stand taken by the
    State. On his own admission it is clear that it was impossible
    for the magistrate to understand the Apostilles and to execute the
    duty placed upon him by sec. 18. The magistrate nevertheless
    concluded that the State complied with the provisions of the Act and
    committed the appellant.









  1. On appeal in the High
    Court the matter was heard by Mainga and Van Niekerk, JJ. Both
    Judges wrote judgments and although both dismissed the appeal their
    reasoning was not always the same.









  1. In regard to the
    Apostilles Mainga, J, pointed out that strict authentication was not
    necessary in terms of the provisions of Rule 63 of the Rules of the
    High Court. The learned Judge found that there was compliance with
    the provisions of Rule 63, if not completely then sufficiently. As
    far as the untranslated apostilles were concerned the Learned Judge
    also accepted the provisions of Article 4 of the Convention and
    pointed out that on accession the Convention became the law of
    Namibia.









  1. Van Niekerk, J. stated
    that the issuing of the Apostilles in terms of the Convention is
    clearly an official act to which the presumption omnia
    praesumuntur rite esse acta
    applies if there was proper
    designation by the Contracting State. Furthermore that the Court
    may assume that the authorities in Namibia are aware with which
    States it has contracted under the Convention. Again , because the
    Minister has given authority to proceed in terms of sec. 12 of the
    Extradition Act and because the Minister is enjoined by sec 10(1) of
    the Extradition Act to satisfy himself that an order for the return
    of the person requested can lawfully be made in terms of the Act,
    the Court can assume that the Minister must have been satisfied that
    the requesting State, by virtue of being a party to the Convention,
    was entitled to rely on the attached Apostilles.









  1. By comparing the English
    version of the Apostille attached to the Convention with the
    untranslated German versions on the documents handed in, the
    learned Judge was able thereby to follow the numbered sequence on
    the English version and compare it with the untranslated German
    versions and could conclude that they were in order. In the
    alternative the Learned Judge was satisfied that the Apostilles had
    been translated. That is assuming that the corresponding German
    words actually mean what they appear to mean and reading these words
    in context with the completed inserted parts of the different
    Apostilles, the assumed version makes perfect sense, bearing in mind
    that the filled in parts consist of words which occur in the sworn
    translation. However, where, in the individual cases some
    untranslated words appear, they are either easily understood or not
    of real significance, e.g. where the date is set out in words.
    The learned Judge stated that the Court was therefore able to
    understand the German Apostilles and the Court concluded that there
    was substantial compliance with Rule 63.









  1. From the above it seems
    that Article 4 of the Convention played a conclusive role for the
    Court a quo, as well as the magistrate, in coming to the
    conclusion that it was not necessary to translate the Apostilles
    into English. This finding presupposes that, as far as Namibia is
    concerned, it is bound to accept the untranslated Apostille and, as
    far as its own law and practice are concerned, is released from
    translating the Apostille into English. It must mean that even
    where the Apostille is in a language which is not understood that
    the fact that it is couched in the form of an Apostille would be
    sufficient and the magistrate and the Courts would have to accept
    it as proper authentication of any document. Mr. Small was
    constrained to accept that this would be the result. The further
    consequence would be that no effect could be given to the peremptory
    provisions of sec. 18 regarding the authentication of documents
    because the magistrate or Court will not be in a position to
    determine whether there was proper authentication in terms of the
    Apostille . To accept this proposition will have, so it seems to
    me, a far-reaching effect which would not be according to the
    dictates of our law and which was also not intended by the
    Convention.









  1. To comply with the
    provisions of the Convention itself the receiving country must be
    able to determine in what capacity the person whose signature was
    being authenticated acted and, where appropriate, what is the
    identity of the seal or stamp affixed to the Apostille. It should
    also be able to determine whether the person so certifying is a
    person designated by the Country from which the document emanates as
    set out in Article 6 of the Convention. These issues fall squarely
    within the principles decided in the MFV Kapitan Solyanik–case,
    supra. Surely Article 4 of the Convention cannot
    mean that a person, whose extradition is requested, may not
    challenge an untranslated and unintelligible Apostille affixed to
    documents whereby application is made for his extradition. If a
    challenge is possible, and there is no reason why not, all the more
    the magistrate holding the enquiry should be placed in a position to
    be able to fulfil his or her duty in terms of sec. 18 of the
    Extradition Act.









  1. I can therefore not
    agree with the meaning ascribed to Article 4 of the Convention by
    the magistrate and the Court a quo. A reading of the
    Article also does not support the contention by Mr. Small and the
    findings of the Court a quo and the magistrate. The
    language of the second paragraph of the Article authorises the
    Country issuing the Apostille to draw it in its official language
    and consequently oblige the receiving Country to accept it
    untranslated. Nothing further is stated which could be interpreted
    as also relieving the receiving Country from complying with its own
    laws. There is no reference in the Article to the Country
    receiving the document and if it were intended for Article 4 to bear
    the meaning contended for by the State, and seemingly accepted by
    the Court a quo and the magistrate, the Article would have
    said so or would have contained language clearly spelling out such
    an intention.









  1. The reason why the
    Country issuing the Apostille is not required to translate it, so it
    seems to me, as was set out by Van Niekerk, J, is that one will then
    run into a never-ending series of Apostille upon Apostille whereas
    for the receiving Country it would be a simple matter which would
    only require the attention of a sworn translator.









  1. In regard to the
    Apostilles Van Niekerk, J, assumed that the Minister, when he
    instructed the enquiry in terms of sec 12 of the Extradition Act,
    was satisfied that the requesting Country, by virtue of being a
    party to the Convention, was entitled to rely on the Apostille. I
    have no problem to find that the requesting Country could accept
    that it could rely on its Apostille. It was Namibia which had the
    duty to comply with the laws of our Country and which had not.
    Sec. 18 of the Extradition Act spells out the duties of the
    magistrate and the Court as regards authentication of the documents
    which duty cannot be performed by relying on an assumption.









  1. The presumption omnia
    praesumuntur rite esse acta
    can in my opinion also not assist
    the State. Authentication is not a simple formality which can be
    presumed.









  1. Evidence of
    authentication must be placed before the Court to satisfy the Court
    in this regard. Where the Apostille is in a language, other than
    the official language, it must be translated to enable the
    magistrate, who does not know German, and the Judges of the High and
    Supreme Courts, where the matter may go on appeal, and who may also
    not know the foreign language, to be able to fulfil their duty in
    terms of sec. 18 of the Extradition Act.









  1. Van Niekerk, J, also
    embarked on a comparison of the English version of the Apistolle,
    annexed to the Convention, with the untranslated German issue and by
    a process of comparison arrived at a translation of the Apostille.
    Secondly the learned Judge applied the translation of certain of
    the words, where those words were translated as part of the contents
    of the documents, to understand the Apostille. However in both
    these instances some working knowledge of the German language was
    necessary. Because of the history of Namibia some of us know some
    German and would in all probability be able to get by. That cannot
    be said of all presiding officers and, as previously pointed out the
    magistrate who held the enquiry candidly admitted that he did not
    know German. He was therefore not able to fulfil his duties in
    terms of sec. 18 of the Act and should mero motu either have
    rejected the documents or called for translations.









  1. The fact that some
    judicial officers may have some knowledge of a foreign language can
    in my opinion not save the situation. The acceptance of, as in
    this case, an untranslated authentication in a foreign language,
    cannot depend on whether a particular presiding officer understands
    the foreign language or not. If this is allowed it will lead to
    arbitrary application of the law where in one instance untranslated
    documents are “lawfully” accepted and in the other instance
    “lawfully” rejected.









  1. It follows therefore
    that I am of the opinion that the documents tendered by the State at
    the enquiry were not properly authenticated and that the magistrate
    should not have accepted the documents with the untranslated
    apostilles.









  1. It was found by the
    Court a quo that it could accept that Germany was a
    Contracting State to the Convention. Reference was inter alia
    made to Article 144 of the Namibian Constitution which provides
    that "the general rules of public international law and
    international agreements binding upon Namibia under this
    Constitution shall form part of the law of Namibia
    ."









  1. From this it follows
    that the terms of the Convention are part of the law of Namibia and
    legally bind Namibia against other Contracting States except for
    objections or denunciations in terms of the Convention.









  1. From the Convention
    itself it is clear that it is a multilateral agreement where States
    which have not yet acceded to its terms may join at any time,
    (Article 12), or may object to the accession by any other State,
    (Article 12), or may denounce the accession by any new State,
    (Article 14). The Convention itself allows for a situation which,
    vis-à-vis the Contracting States, may change from time to
    time by new States joining the Convention etc.









  1. When Mr. Small was asked
    whether some form of proof should not have been placed before the
    magistrate, holding the enquiry, that Germany was a Contracting
    State to the Convention, his answer was that the Convention was part
    of the law of Namibia and as to which States acceded to its terms
    could easily be determined by going on the internet.









  1. It seems to me that Mr.
    Small was of the opinion that because the Convention was part of the
    law of Namibia the handing in of the Convention also proved which
    States were bound by it. Although I agree with this proposition as
    far as the terms of the Convention are concerned, the Convention
    itself is silent as to which States have acceded to its terms and to
    what extent such accession was. The act of accession by another
    State is not part of the law of Namibia and whether the Convention
    is binding on a State, remains, as far as Namibia is concerned, a
    matter to be proved. Ironically the State found it necessary to
    prove Namibia’s accession to the Convention by handing in the
    necessary documentation. Why it did not think it necessary to do
    so in regard to a foreign State is a mystery.









  1. To have proved that
    Germany was a Contracting State to the Convention would have been as
    easy as it was to prove that Namibia was such a State. I say so
    because in terms of Article 15 of the Convention all relevant
    information such as signatories to the Convention and accessions
    thereof, who was designated by a specific country to issue
    Apostilles, any objections or denunciations, were given notice of by
    the Ministry of Foreign Affairs of the Netherlands to Namibia.
    Facts such as these come before a Court or, in this case before the
    magistrate, because they are so notorious that the Court or
    magistrate could take judicial notice thereof or they are placed
    before the Court or magistrate by evidence. None of the parties
    even suggested that the magistrate or the Court should have relied
    on judicial notice to find that Germany was a Contracting State to
    the Convention. For obvious reasons I agree that this was not an
    instance where the Court could take judicial notice. It is
    certainly not a notorious fact whether Germany is, or is not, a
    Contracting State. However a short affidavit by a person under
    whose control the information is, seemingly some or other official
    in the Ministry of Foreign Affairs, would have sufficed.









  1. From what is set out
    above it follows that the appeal must succeed.









  1. However there are other
    findings by the Court a quo which may result that magistrates
    holding enquiries may accept inadmissible evidence or, in instances
    where there are multiple charges, that proof of some of the charges
    may be sufficient to commit a person on all the other charges
    although there may be no prima facie evidence in regard to
    that charges.









  1. As previously set out
    the provisions of the Extradition Act are mainly uncharted waters
    for the Courts of Namibia. Against this background the case of S
    v Bigione
    , supra, laid down important principles
    which, so it seems to me, were not always given effect to by the
    Court a quo. The first issue to which I want to refer is the
    Court’s interpretation of sec 12(5)(d) of the Extradition Act.
    This section provides as follows:








"(5) If at any
enquiry the magistrate concerned is satisfied, after hearing the
evidence tendered at such enquiry, that -



(d) In the case of a
person being accused of having committed an extraditable offence,
the evidence adduced would be sufficient to justify the committal
for trial of the person concerned if the conduct constituting the
offence had taken place in Namibia;







the magistrate shall
issue an order committing that person to prison to await the
Minister’s decision under s 16 with regard to that person’s
return to the requesting country."








  1. The meaning of the words
    "sufficient evidence" was discussed by the Court in the
    Bigione-case, supra, and the Court concluded that
    those words mean prima facie evidence. The learned Judge
    referred to the case of Harksen v President of the Republic of
    South Africa and Others,
    1998 (2) SA 1011 (C) 1042C-D where
    that Court dealt with sec. 10(1) of the South African Extradition
    Act which required sufficient reason for a committal and where it
    was found to mean a prima facie case. The Court also
    referred to other authorities which were of a similar opinion and
    then concluded –








"Further
reinforcement for the view that s 12(5)(b) of the Act requires a
magistrate to find that a prima facie case has been made out
if a committal order is to be made is to be found in s 8 of the Act."











  1. Sec. 8 provides for the
    documents which must accompany a request for extradition of a person
    to another country and para. (c) provides for statements containing
    information which set out a prima facie case. It is
    important to note that this section does not only require prima
    facie
    evidence of the commission of the extraditable offence but
    also prima facie evidence that the offence was committed by
    the person whose extradition is requested.









  1. The learned Judge,
    Hannah, J, then considered the meaning of sec. 18(2)(c) of the
    Extradition Act which stated that a deposition, statement or
    affirmation made, sworn or affirmed, and duly authenticated or
    certified, shall on its production be prima facie proof of
    .the facts stated therein. At page 131F-H the Court said the
    following:








"On a plain reading
of para (c) it must mean any deposition which has been made, any
statement which has been sworn, or any affirmation which has been
affirmed by any person. In my view, there is no room for finding
that the provision includes a statement which is neither sworn nor
affirmed or which is not a deposition. We therefore find that the
Act itself stipulates, in the case of written evidence, what would
amount to prima facie proof or prima facie evidence
and, in my opinion, it would be a very exceptional case indeed where
anything less than what is stipulated could be held to amount to that
degree of proof or to fall within that class of evidence."












  1. The
    Court further continued at p131I-J to 132A as follows:













"Mr. Horn, for the
respondent, sought to uphold the magistrate’s finding by inviting
the Court to have regard to the material which was initially placed
before the magistrate, namely the written summary of the
investigations and the ‘observations’ of the Judge who carried
out the preliminary investigations but I am of the view that the
magistrate was correct when he rejected that material. I agree with
Mr. Potgieter that in assessing whether there was sufficient evidence
to commit for trial in Namibia the magistrate had to consider the
evidential regime in this country. He was required to examine the
evidence in the light of Namibian laws including whether the evidence
was admissible under our laws."













  1. I respectfully agree
    with the law as set out in the case of Bigione. The
    evidential regime in Namibia is that evidence is either given viva
    voce
    or, where it concerns written evidence, by deposition or
    statements which are either sworn or affirmed. Furthermore the
    evidence must be admissible evidence. Whether there is sufficient
    or prima facie evidence to commit a person cannot be
    determined on inadmissible evidence, such as hearsay evidence. By
    that I do not mean to say that a statement which contains
    inadmissible evidence must be rejected in toto. In this
    regard I agree with Van Niekerk, J, as to the Court’s function and
    evaluation of evidence. However the inadmissible evidence cannot be
    considered in determining whether there is a prima facie case
    made out for committal.









  1. Our Extradition Act is
    very much cast in the mould of the English Extradition Act of 1870
    and it would therefore be useful to look at decided cases in that
    jurisdiction. In the case of Beese and another v Governor of
    Ashford Remand Centre and another,
    [1973] All ER 689 at 692b,
    a decision of the House of Lords, the words ‘sufficient
    evidence’ were interpreted to mean ‘prima facie evidence
    of guilt’ which, in my opinion not only means proof of the
    commission of the crime but also prima facie proof of the
    commission of that crime by the person. (See also R v Governor of
    Pentonville Prison ex parte Narang
    , [1878] AG 247 at p 258H and
    see generally Halsbury’s Laws of England, 4th
    Edition, Vol. 18 paras 225ff).









  1. This brings me to the
    unsworn statement by the prosecutor, Mr. Reichenberger. This
    statement was given in terms of sec. 18(2)(b) of the Extradition Act
    as a statement of a competent judicial or public officer of the law
    of a requesting country. As such the statement is evidence by an
    expert in the law of the requesting country as to what the law of
    that country is, in order to enable the magistrate, holding the
    enquiry, to determine whether the crime was an extraditable one.









  1. The Court a quo
    accepted the unsworn statement and accepted that Reichenberger was a
    competent person to give such evidence because of his description as
    a public prosecutor and because the document emanated from the
    Department of Public Prosecutions in Munich. Apart from the
    description as a public prosecutor nothing further was set out to
    qualify the said Reichenberger as an expert in German criminal law.









  1. The basis on which the
    unsworn statement was accepted by the Court a quo was because
    it was found that sec. 18(2)(b) authorised the acceptance of an
    unsworn statement and that the section therefore changed the
    evidential regime in Namibia and was therefore part of that regime.









  1. In coming to its
    conclusion that the statement in the section need not be sworn the
    Court referred to sec. 18(2)(c) which authorizes the acceptance of
    an authenticated deposition, statement, or affirmation which has
    been made, sworn or affirmed by any person.
    Because the
    statement in ss (b) was not qualified by the words ‘sworn or
    affirmed’ and because it was set out in a different subsection and
    not in ss. (c) the Court concluded that the statement need not be
    sworn or affirmed.









  1. In my opinion the Court
    a quo read too much into the fact that the requirement for a
    statement in ss. (b) was express and separate from the requirement
    set out in ss. (c). The reason why there was an express reference
    to a statement under ss. (b) by an expert in the law of the
    requesting country, was because of the provisions of sec. 3(1) of
    the Extradition Act. This section provides as follows:








"3(1) For the
purposes of this Act “extraditable offence” means an act,
including an act of omission, committed within the jurisdiction of a
country contemplated in section 4(1) which constitutes under the laws
of that country an offence punishable with imprisonment for a period
of 12 months or more and which, if it had occurred in Namibia, would
have constituted under the laws of Namibia an offence punishable with
imprisonment for a period of 12 months or more."













  1. The section introduces
    the double criminality principle and because of that, expert
    evidence of the law of a foreign country was necessary. Sec.
    l8(2)(b) complies with this requirement and authorises the
    acceptance of a statement by a competent person proving what that
    foreign law is. The use of the word ‘statement’ in the
    different subsections is in my opinion not to be construed as an
    indication that the Legislature also intended to change the
    evidential regime in Namibia by accepting evidence in unsworn
    statements. As was pointed out by Hannah, J, in the Bigione-case,
    supra, the Act itself stipulates what would be prima facie
    evidence and it would be a very exceptional case where anything
    less than a sworn or affirmed statement or a deposition could be
    held to amount to prima facie proof or evidence.









  1. As to the question
    whether Reichenberger was a competent person to state the German
    law it is so that his description as public prosecutor intimates
    that he is a person practising criminal law in Germany. In the case
    of Mahomed v Shaik, 1978 (4) SA 523(N) at page 528A it was
    stated that it was the function of the Judge to decide whether an
    expert witness is properly qualified to be of assistance to the
    Court. That being so it seems to me that the safer option would be
    to also prove the expert witness’s qualifications, if any, and
    state his experience and the capacity in which he gained that
    experience. In the present instance Reichenberger no more than set
    out the various statutory provisions relevant to the charges and,
    but for the form in which he made his statement , could have been
    accepted. I also agree with the Court a quo that his
    failure to annex the very provisions of the statute would not be
    cause to reject his evidence. It would however be a salutary
    practice to do so where the law of the foreign country is based on
    statutory provisions.









  1. One further aspect needs
    to be addressed and that is the issue whether the magistrate, in a
    case such as the present with multiple charges, needs to be
    satisfied in respect of each charge that a prima facie case
    was made out before he can commit the person on that particular
    charge. That, so it seems to me, is what the Extradition Act
    requires.









  1. Looking at the
    provisions of the Extradition Act, it is in my opinion inherent in
    the specialty clause contained in sec 5(4) of the Extradition Act
    that at the enquiry a person shall only be committed in respect of
    those charges where there is prima facie proof of the
    commission of the offence by the person whose return is requested.
    This section provides that no person shall be detained, charged or
    punished for an offence by the requesting country other than the
    offence in respect of which the person’s return was sought or a
    lesser offence proved by the facts. This section grants important
    rights to the person whose return is requested and cannot be
    circumvented by an omnibus committal. It is furthermore
    clear that the magistrate must also have regard to the other
    provisions of sec. 5 and that a committal cannot be made unless the
    magistrate is satisfied that one or other of the provisions of this
    section does not prohibit the return of the person. The requesting
    country can only try a person on those charges in respect of which
    he was extradited by the country returning him.









  1. It is further a matter
    of logic that, given the provisions of the Extradition Act, a
    magistrate holding an enquiry will only commit a person where there
    is sufficient evidence and this presupposes a consideration of each
    charge in respect of which the return of the person is requested.
    (See R v Governor of Brixton Prison, Ex parte Gardner, [1968]
    1 All ER 636 at 640B.)









  1. In the present instance
    the Court a quo was satisfied that there was prima facie
    proof in regard to all 203 charges of fraud, 4 charges of forgery
    and 12 charges of tax evasion. A very complete and full warrant of
    arrest was issued setting out not only the charges to be brought
    against the appellant but also what the evidence was going to be.
    However what is set out in the warrant of arrest is not evidence
    which can be considered in determining whether there was prima
    facie
    proof of the commission of the offences by the appellant.
    I, however agree with Van Niekerk, J, that that does not mean that
    the warrant is of no significance. It obviously served the purpose
    of informing the magistrate of what the charges were, which were
    brought, and it also determined the offences in terms of which a
    return was sought by the requesting country.









  1. In regard to the fraud
    charges, our law, as seemingly also the law of Germany, requires
    that there must in each instance be proof of a misrepresentation
    made by the accused to the other party with the intention to defraud
    as a result of which such party acted to his prejudice or potential
    prejudice. (See S v Huijzers, 1988 (2) SA503 (AA).
    Notwithstanding the claim in the warrant of arrest that the
    appellant made these representations in each instance no such
    evidence was placed before the magistrate at the enquiry. Except
    for an affidavit by one Lipps, of the Ortenau municipality, and
    which does not take the matter any further, affidavits of none of
    the other municipalities, to whom it was alleged misrepresentations
    were made by the appellant, were put in at the enquiry. To prove
    fraud there should at least have been evidence by municipality A
    that it was represented to it by the appellant that Municipality B
    wanted to borrow money on a short time loan, and an affidavit by B
    that it did not do so, or such allegations which would be necessary
    to substantiate the elements of the crime of fraud in each of the
    charges.









  1. In dealing with this
    part of the case the Court a quo relied mainly on the
    evidence of the witness Lipps and the investigating officer,
    Schöttl. I could find no evidence of a fraudulent
    misrepresentation in the evidence of Lipps. His was also the only
    evidence by a member of a municipal community. Bearing in mind the
    fact that all the fraud charges are alleged to originate from such
    communities it is indeed surprising that no evidence was put before
    the magistrate from the other communities. It seems to me that
    they would have been the only people who could testify to the
    misrepresentations made by the appellant and to the potential, or
    actual prejudice suffered by such communities. Reliance was placed
    on the evidence of Schöttl to fill this gap. He obviously
    could not give any admissible evidence in regard to the
    misrepresentations made, obviously because he had no knowledge
    thereof other than what was told to him.. Even if this was a
    pyramid scheme evidence of a misrepresentation was still necessary.
    In this regard sight must not be lost of the fact that the charges
    are fraud charges and not theft of money and that we do not know
    whether a conviction of theft is a competent verdict on a charge of
    fraud in German law or even a lesser offence in terms of that law.
    The witnesses Auer, Wiendl and Wieland only filled in the background
    to the commission of the crimes and raised some suspicion about the
    dealings of the appellant.









  1. As far as the forgery
    charges were concerned it was claimed in the warrant that the
    forgeries were made by the appellant. No such evidence was put
    before the enquiry except that Schottl stated that the changes were
    made by appellant. Whether this is an assumption or based on some
    evidence is not clear. Again he could only make such claim on what
    was told to him by other witnesses. In our law evidence would be
    necessary to prove that it was the accused that made the forgeries.
    Me. Pornbacher merely pointed out the changes made to the
    documents. This was an instance where I agree with Mr. Botes that
    copies of these documents should have been put before the enquiry.
    (See R v Governor of Pentonville Prison: Ex Parte Kirby,
    1979(2) All ER 1094 at 1100 b - c.)









  1. Comparing the Warrant of
    Arrest and affidavits concerning the tax offences with the
    ‘certificate’ given by the expert Reichenberger as to the German
    law on this point, it seems that there is no relationship between
    what the German authorities intended to charge the appellant with
    and what was set out by Reichenberger. .









  1. In the Warrant of Arrest
    it is alleged that the appellant, being a registered tax payer,
    failed to submit to the inland revenue office the required income
    and trade tax returns for 1993 – 1996 as a result whereof
    assessments were made by the inland revenue office which were less
    than what he should have paid.









  1. It was secondly alleged
    that the actual income of the appellant from financial advisory
    services plus withdrawals were much more than what was assessed by
    the inland revenue office for tax purposes due to his failure to
    submit returns.









  1. It was lastly alleged
    that the appellant failed to submit to the inland revenue office
    income and trade tax returns for the period 1997 and 1998 and
    because of his earnings from financial advisory services and
    personal withdrawals the estimated liability to pay tax was as set
    out in the schedule in the warrant.









  1. The request for the
    return of the appellant, and to substantiate the allegations made in
    the Warrant of Arrest, Reichenberg referred to sections 369 and 370
    of the Taxation Code of Germany which, according to him, would be
    the statutory provisions on which the appellant would be charged.
    These sections provide as follows:








"Section 369
Taxation Codes: Tax Offences







(1) Tax offences
(Customs offences) are:-






    1. Actions which are
      punishable according to the laws on taxation,











    1. The import, transport,
      or export without permission of items into, through, or out of a
      different country,











    1. Forgery of stamps, and
      the preparations therefore, insofar as the offence relates to
      taxation marks.











    1. Aiding and abetting a
      person who has committed an offence as defined under the numbers 1
      to 3 above.









(2) The general laws
governing criminal law are valid with respect to taxation offences
unless the legal regulations in the taxation laws lay down different
arrangements.







Section 370 Taxation
Code: Tax evasion







(1) Any person who



1. makes false or
incomplete statements to the Inland Revenue Office or to any other
authority about objects that are liable to taxation,






  1. contrary
    to his/her obligations does not inform the Inland Revenue Office
    about objects that are liable to taxation, or








  1. contrary
    to his/her obligations does not use taxation marks or taxation
    stamps, thereby reducing his/her taxes or gaining unjustifiable tax
    advantages for himself/herself or a third party,







shall
be .punished with a prison sentence of up to five years or a fine."













  1. Ss. (2) provides that an
    attempt to commit these offences would also be punishable. Ss.
    (3) defines those actions which would be regarded as particularly
    serious and prescribes a sentence of six months and up to ten years
    imprisonment in those instances where a person commits an offence in
    terms of sections 369 or 370 and the evidence proves that it falls
    within the definition of ss. (3). Ss. (4) further defines the
    meaning of words such as "reduce", "tax advantages",
    "unjustifiable tax advantages", etc. as used in ss. (3).









  1. It must be clear from a
    reading of the Warrant, and the affidavits supporting it, that it
    bears no relation to the provisions which the expert Reichenberger
    set out in his unsworn statement. Sections 369 and 370 clearly deal
    with matters pertaining to customs and excise tax as set out in the
    heading to sec. 369. Reichenberger either made a mistake and quoted
    the wrong provisions or there are no other provisions in terms of
    which the appellant can be charged. Either way the magistrate
    could not have found that there was evidence proving prima facie
    the offences set out under sections 369 and 370 of the Taxation
    Code. If these were not the provisions under which Germany
    intended to charge the appellant then, without expert evidence of
    what the German law is in this regard, it would be impossible to
    apply the double criminality principle (Sec. 3(1)) because we do not
    know what the German law is and neither can we, for the same reason,
    apply the speciality principle (Sec. 5(4)). That being the case a
    committal on these charges was not possible.









  1. From the above it
    follows that for the reasons set out the appeal must succeed.
    However, I find it necessary to make some comment in regard to the
    requirement of our Extradition Act that a committal can only follow
    upon a finding by the magistrate that there was sufficient or prima
    facie
    evidence to commit. This requirement places a heavy
    burden on the State and on the resources of the State. What is
    supposed to be a relatively simple and speedy procedure, because it
    is only an enquiry and not a trial where guilt or innocence play a
    part, inevitably develops into an all out fight and the making of a
    last stand to attempt to avoid the consequences of criminal
    behaviour in another country. This is made possible by the
    requirement of a prima facie proof before committal. In
    this battle the State is at a disadvantage because it must mainly
    make do with evidence on affidavit drawn up in another country which
    may not always be au fait with legal procedures and the
    dictates of our law. At a time where white-collar crime is on the
    increase we do not want Namibia to be seen as a haven for such
    criminals.









  1. In our opinion the
    Legislature should take steps to address the situation. In crimes
    of fraud, where there may be hundreds of charges, as was illustrated
    by the present case, the possibility of some mishap occurring at the
    time of the enquiry is a reality. Once this happens the chances
    that it can be set right at a later stage is almost non-existent.









  1. One way to ensure that
    the enquiry is limited to what is really relevant, from Namibia’s
    point of view, is to allow as an option of proof of a prima facie
    case the submission of a certificate by the prosecuting authority of
    the requesting country stating that it has sufficient and prima
    facie
    proof of the commission of the crime by the person whose
    return is requested. This was done by South Africa and was found
    not to be unconstitutional by its Constitutional Court. (See sec.
    10(2) of Act 67 of 1962 and Geuking v President of the Republic
    of South Africa, supra.)









  1. For the above reasons I
    have come to the conclusion that the magistrate should have
    discharged the appellant.









  1. In the result the
    following order is made:










    1. The cross-appeal of the
      Respondent, the State, is dismissed.











    1. The appeal of the
      appellant is allowed and it is ordered that the appellant be
      discharged.



















________________________


STRYDOM,
A.J.A.












I
agree.

















________________________


CHOMBA,
A.J.A.











I
agree.

















________________________


DAMASEB,
A.J.A.





/mv






DAMASEB, A.J.A. :
[1] I have read in draft the judgment of
Strydom A.J.A. For the reasons that he gives in that erudite work,
and with which I am in respectful agreement, I too would allow the
appeal and discharge the appellant. For the reasons he gives I would
also dismiss the State’s cross-appeal.







[2]
This is a case of great national importance and the consequences of
the Court’s finding are far-reaching yet ineluctable in the light
of the state of the law as we find it and so ably explained by my
Brother. I have opted to say something albeit only very briefly in
view of the importance of the issues raised by this appeal. I will
confine my remarks to two issues only: Firstly, as regards the
question of the right of appeal to this Court and, secondly, the
requirement that a requesting state must furnish sufficient evidence
to establish a prima facie case in order for the magistrate to
make a finding committing a person for extradition.







[3] The facts of this
long-drawn out litigation are fully set out in the judgment of
Strydom A.J.A and there can be no productive purpose in my repeating
them here.







[4] I was greatly
concerned about whether or not there was an appeal to this Court as I
set about considering the result in this appeal. What concerned me
most was whether Parliament, by implication, did not intend that no
appeal lie beyond the High Court by virtue of the combined effect of
the provisions contained in s14 (1) and s21 of the Extradition Act,
no. 11 of 1996. Section 14(1) states:







‘’Any person or the
government of the requesting country concerned may, within 14 days
from the date of an order made in terms of section 12, appeal to the
High Court against that order, and the High Court may, upon such
appeal , make such order in the matter as it thinks the magistrate
ought to have made.’’











[5] Subsection (2) of
s14 then sets out the powers enjoyed by the High Court in considering
an appeal from the magistrate who held the inquiry. There is no
mention in this provision of a further appeal to the Supreme Court;
thus inducing the superficially attractive argument that no appeal
was intended to the Supreme Court from a judgment of the High Court
made in terms of s14 of the Extradition Act. This line of reasoning
assumes some respectability if one considers s21 which says:







‘’No person –




  1. committed to prison
    under section 12(5) or 15(2) to await the Minister’s decision in
    terms of section 16;









  1. committed
    to prison under section12(5) to await the Minister’s decision in
    terms of section 16 and who has appealed against the committal order
    in question in terms of section 14
    ; or









  1. whose return has been
    ordered by the Minister under section [16 shall be entitled to
    bail.’’ (My underlining for emphasis)












[6]
What the legislature sought to achieve through s21 is to limit a
person’s right to bail once a person has been committed to await
extradition. The question therefore arises, if an appeal to the
Supreme Court is founded not on s14 of the Extradition Act,

but on sections 14 and 18 respectively of the Supreme
Court Act 1990 and the High Court Act 1990 as found by Strydom A.J.A
(and I agree); considering that those provisions do not limit the
right to bail, would a person who appeals to the Supreme Court from
the decision of the High Court be entitled to apply to the Supreme
Court to be admitted to bail? There is, I apprehend, no facile answer
to that question and I would rather not express any view on it at
this point in time. It may very well be that my concern is not
justified. This, no doubt, is some basis for saying an appeal to the
Supreme Court was not intended. That, however, is not the only
reasonable interpretation that can be placed on the scheme of the
extradition Act. I am unable to find that the Extradition Act
excludes an appeal to the Supreme Court. As must be clear from the
judgment of Strydom A.J.A, it would not be unconstitutional for the
Legislature to limit or restrict an appeal to the Supreme Court from
a decision of the High Court in terms of s14 of the Extradition Act,
but it chose not to do so in terms clear enough to put the matter
beyond doubt. If Parliament wants to achieve that result it should
say so clearly.







Prima facie case







[7]
The consequence of the requirement that a magistrate should only on
the basis of prima facie evidence pointing to the commission
of an offence in the requesting country commit for extradition a
person whose extradition is sought, is that only evidence admissible
according to the law of Namibia must be relied upon in establishing
if such a prima facie case has been made out. Strydom A.J.A
correctly concludes that inadmissible evidence cannot establish a
prima facie case and that the evidence relied upon in casu
does not constitute admissible evidence. The severity of this
requirement has been recognised elsewhere. As was said by Mokhtar
Sidin J in the Malaysian case of PP v Lin Chien Pang [1993] 2
MLJ 37 at 40:







‘’ To me it is no
good for the requesting state … merely to say that the fugitive
criminal had committed an offence or offences in the US and thereby
the requested state, in this case Malaysia, must accept that an
offence or offences had been committed.’’











In
that case the only evidence relied upon to justify an extradition was
that of an accomplice. In Malaysia, like in Namibia, an accomplice’s
evidence needs corroboration. The Malaysian Court refused
extradition as the accomplice’s evidence was uncorroborated. I
agree with Strydom A.J.A that the standard in the Namibia Extradition
Act (i.e. a prima facie case) may be too high. Parliament
will do well to consider if that is desirable, but while it stands,
the Courts of this land must enforce it.







[8] At the risk of being
repetitive, but for the avoidance of doubt, I wish to stress that I
too would allow the appellant’s appeal and dismisses the
respondent’s cross appeal for all of the reasons given by Strydom
A.J.A.










________________________


DAMASEB,
A
.J.A.


























COUNSEL
ON BEHALF OF THE APPELLANT:








Instructed
by:











COUNSEL
ON BEHALF OF THE RESPONDENT:





Instructed
by:



MR.
R.D. COHRSSEN asst. by


MR.
L.C. BOTES





WEDER,
KAUTA & HOVEKA











MR.
D.F. SMALL





PROSECUTOR-GENERAL