Court name
High Court Main Division
Case number
APPEAL 92 of 2013
Title

Moussa v Prosecutor-General and Others (APPEAL 92 of 2013) [2013] NAHCMD 103 (15 April 2013);

Media neutral citation
[2013] NAHCMD 103
Coram
Parker AJ













REPORTABLE








REPUBLIC OF NAMIBIA








HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



EX-TEMPORE JUDGMENT








Case no: A 92/2013








In the matter between:








ALI MOUSSA
..............................................................................................APPLICANT








and








THE PROSECUTOR-GENERAL
.................................................FIRST
RESPONDENT



THE REGIONAL
MAGISTRATE (KATIMA MULILO) ............SECOND
RESPONDENT



THE MINISTRY OF SAFETY
AND SECURITY ..........................THIRD
RESPONDENT








Neutral citation:
Moussa v The Prosecutor-General (A 92/2013) [2013] NAHCMD 103
(15 April 2013)








Coram: PARKER AJ



Heard: 15 April
2013



Delivered: 15
April 2013








Flynote: Practice
– Applications and motions – Urgent application –
Applicant seeking an order for release from further detention
awaiting trial for criminal offences – Court not competent as
court of first instance to grant such relief where applicant applied
for bail on two separate occasions and the lower court refused to
admit applicant to bail – Decisions of lower court valid until
set aside by a competent court on review or appeal.








Flynote:
Constitutional law – Applicant seeking order that the
respondents (the Prosecutor-General and certain magistrates of the
lower court) withdraw criminal charges against him in a criminal
proceeding – Court not competent to grant such order where
set-down trial date of the applicant’s criminal trial has been
ordered already by the trial court.








Summary: Practice
– Applications and motions – Urgent application –
Applicant as trial-awaiting accused person sought an order to the
released from further detention – Applicant’s two
separate applications to be admitted to bail were refused by the
lower court – The court qua court of first instance is
not competent to grant such order – Any such order would set at
naught the decisions of the lower court which are valid and would not
be in tune with the due administration of justice.








Summary:
Constitutional law – Applicant sought the relief that the
respondent (the Prosecutor-General and certain magistrates of the
lower court) be ordered to withdraw criminal charges in a case he is
facing – Court refused to make such order – Court held
that the court cannot make such order without violating Article 88(2)
of the Namibian Constitution where there is no justification for the
making of such order.










ORDER










The application is
dismissed with costs.










JUDGMENT










PARKER AJ:








[1] The applicant, an unrepresented
litigant, has brought an application on notice of motion. There is
also a ‘Certificate of Urgency’; and the applicant prays
that the matter be heard on urgent basis (para 1 of the notice of
motion). The respondents, represented by Mr Chanda, have moved to
reject the application; and in that behalf counsel did file a ‘Notice
to raise questions of law’ in terms of rule 6(5)(d)(iii)
of the rules of court; and they raise three issues. The first is the
absence of a founding affidavit. To cure this non-compliance with the
rules, the applicant handed in to the court at the commencement of
the hearing an affidavit and said it should be read in conjunction
with the Founding Statement which he had filed earlier with the
notice of motion. After the applicant explained the handing in of the
affidavit in court, Mr Chanda informed the court that the respondents
were not objecting to the handing in of the affidavit. I accept
counsel’s concession. That being the case the first point of
law was not pursued by counsel.








[2] The applicant prays
that the court should (a) order the respondents to withdraw case R/C
05/09 from the court roll (para 2 of the notice of motion), (b) order
the release of the applicant from further detention on conditions
(para 3 of the notice of motion); and (c) that the date of 4 June
2013 set by the trial court for the trial of his criminal case in the
lower court should be the last postponement (para 4 of the notice of
motion).








[3] From the papers filed
of record by the applicant and the points in law filed by the
respondents and submissions by the applicant and Mr Chanda, the
following findings are inescapable. The applicant who is being held
in custody awaiting trial for criminal offences (together with his
co-accused persons) applied for bail in the lower court – not
once but twice. On the first occasion the applicant was not
represented by counsel, but was represented by counsel on the second
occasion. The lower court on both occasions refused to admit the
applicant to bail. Most significantly, the applicant has not appealed
against those decisions.








[4] It is clear that the
accused has not being denied his right to apply for bail and his
right to appeal from the decisions of the lower court. This court is
therefore not entitled to order his release from continued detention
awaiting trial. If the court qua a court of first instance in
the present proceeding made such order the court would be setting at
naught the decisions of a competent court, that is the lower court.
Such an order would indubitably be offensive of due administration of
justice. This disposes of the relief sought in para 3 of the notice
of motion.








[5] This court is also
not competent to make the order prayed for in para 2 of the notice of
motion whereby the applicant prays that this court makes an order
that the respondents withdraw Case R/C 05/09. Any such order will
violate Article 88(2) of the Namibian Constitution which vests the
power to prosecute in criminal proceedings in the Prosecutor General
only. (See Adriaan Jacobus Pienaar v The Prosecutor General and
Others
Case No. A 72/2013 (judgment on 2 April 2013) (Unreported)
para 4.)








[6] What remains is the
applicant’s prayer in para 4 of the notice of motion in which
the applicant seeks an order that the date of 4 June 2013 which has
been set by the lower court for the trial of his criminal case should
be the last postponement. This court cannot make any such order when
4 June 2013 has not come. Any such order would be based on
speculation. The court would be making an order based on conjecture
and not having before it facts as to why the trial would or would not
proceed. The court would on that score be anticipating facts which
are not before it. Such conduct would be unjudicial; and such order
would not be in tune with due administration of justice.








[7] For all the
aforegoing reasoning and conclusions, in my judgement, the
application should fail; and it fails. Whereupon; the application is
dismissed with costs.























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



C Parker



Acting Judge













APPEARANCES








APPLICANT: In Person













RESPONDENTS: C Chanda



Of Government Attorney, Windhoek