COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
no: A 261/2014
29 OCTOBER 2014
the matter between:
OF SAFETY & SECURITY......................................2ND
MAGISTRATE OF KEETMANSHOP................................3RD
HEAD OF PRISON
citation: Pienaar v The Prosecutor-General (A261/2014)  NAHCMD
320 (29 October 2014)
21 October 2014
29 October 2014
Urgent application for mandamus against a
magistrate to strike his case from her roll because he was not
requisitioned to attend court. He also sought other relief. The
applicant failing to make out a case for a mandamus or for the other
relief sought. Application dismissed.
the application is dismissed with costs.
The applicant brought an urgent
application against the Prosecutor-General as first respondent, the
Minister of Safety and Security as second respondent, the Magistrate
of Keetmanshop as third respondent and the Head of the Hardap Prison,
as fourth respondent on 30 September 2014. In the notice of motion,
the applicant, in addition to seeking condonation for bring the
application as one of urgency in paragraph 1, sought the following
Seeking a mandamus to compel the Magistrate, Keetmanshop to strike
case number KMH 1771/2013 from the court roll;
In the alternative to two, directing that the applicant in future
need only appear in respect of that case via a warning or subpoena;
Ordering the Prosecutor-General and the Minister to charge police
officers who are in contempt of a court order and for perjury by
reason of what they stated to the court on 12 May 2014 and on 1 July
Directing the Ombudsman to report again as to why the Minister and
Magistrate ‘again make a mockery of justice by lying to court
and to refuse to bring the applicant to court’
When the matter was called on 30
September 2014, it was postponed to 15 October 2014 to enable the
respondents to file answering affidavits. On 15 October 2014, the
applicant pointed out that he was not able to file a replying
affidavit for various reasons and the matter was then postponed to 21
October 2014 when it was heard.
This application has arisen in the
following way. The applicant is in custody in the Hardap Prison. He
is awaiting trial on a number of charges in the Mariental Regional
Court after a number of different charges in different districts were
consolidated for the purpose of conducting a single trial in respect
of those charges. The applicant however also awaits trial in the
Keetmanshoop District Court for an alleged contravention of
The thrust of the applicant’s
complaints, forming the subject matter of this application, concern
the fact that he had not been taken to court by police officers on
different occasions when the immigration charge had been postponed in
the Keetmanshoop Magistrate’s Court. He ascribes the conduct of
the police officers and the prosecution to malice and repeatedly
alleges that they had lied to the court concerning his
He first complains that he had not
been brought to court in February 2014 when the matter had been
remanded. He also complained that he had not been brought to court on
14 May 2014 when it was stated that the applicant might be busy with
the bail application in Windhoek. He complained that the he had not
been taken to court on 21 May 2014 when the matter was called again
or on the remand date of 12 June 2014. It was then postponed for the
final remand on 1 July 2014. He complained that he was not brought to
court on that date either. He claims that the documentation to
requisition him for court appearances had not been properly attended
to. He refers to some complaints which he brought to the attention of
the Judge-President who had in turn requested the Ombudsman to file a
report. He then referred to the court hearing on 19 September 2014 in
Keetmanshoop where he complained to the presiding magistrate that he
had not been brought to court previously and referred to two
occasions when he had not been brought to court and accused those
responsible for misleading the court. He further stated that if the
police failed to bring him to court then the matter should be struck
from the roll. He accordingly sought an order to that effect from the
magistrate on 19 September 2014.
The presiding magistrate responded
that case law did not provide that matters should be struck from the
roll due to a failure on the part of the police to bring accused
persons to court. The applicant then responded that he would bring
this urgent application as the matter should already have been struck
from the roll and that his appearance on that date was according to
him illegal and that he would seek the necessary and appropriate
relief in this urgent application. The matter was then postponed to
30 October 2014 for the outcome of this application.
The applicant’s complaint is
that the presiding magistrate should have read the case record and
seeing that it was for a final remand, the matter should have been
struck from the roll. He complained that the prosecutors had misled
the court about the reason for his non-appearance in court. He
complained that the prosecutors had perjured themselves and should be
charged for that.
In the answering affidavit, most of
the allegations were put in issue. Certain preliminary points were
also taken. It was pointed out that the applicant sought relief
against the Ombudsman. Yet he had failed to cite the Ombudsman as a
respondent. It was submitted that failure to have joined the
Ombudsman was fatal to the proceedings against that functionary.
The respondents also disputed that
the matter should be heard as one of urgency. The point was taken
that any urgency was self created by the applicant. A jurisdictional
point was also taken. It was contended that this court could not
interfere in proceedings before a magistrate courts as it was not
sitting as a criminal court. This point was understandably not
persisted with in the oral argument and is without substance.
The material facts raised in support
of the merits of the application were denied by the respondents. It
was pointed out that the February postponement was in order to
provide the applicant with the opportunity to apply for legal aid as
well as for further investigation and that the applicant had been in
In denying that the reason given by
the applicant for his non appearance 14 May 2014 and 21 May 2014, the
respondent pointed out that there were at the time protracted
proceedings in a bail application brought by the applicant in the
regional court. The transcript was attached in support of the denials
raised concerning statements made as to the applicant’s non
appearance. The applicant’s non appearance on 1 July 2014 was
also explained with reference to a court appearance by the applicant
in the High Court on 30 June 2014 which meant that it was not
possible to transport him to Keetmanshoop for the next appearance on
the next day.
It follows that several of the
applicant’s extravagant statements concerning perjury and lying
levelled at the prosecution and police are unsustainable. But apart
from that, it soon becomes evident that the main relief sought, being
a mandamus, would not be competent and that the applicant has not
made out a case for relief of that nature directed against the
is well settled that a mandamus is an order requiring an authority to
comply with statutory duty imposed upon him or her or to perform some
act which remedies a state of affairs brought about as a result of
his or her own unlawful administrative action.
A mandamus is thus available to an applicant to compel the
performance of a specific statutory duty and to remedy the effect of
unlawful action already taken.
It is also trite that a mandamus will only be granted where the
public authority is under a clear duty to perform the act ordered.
Where a public authority has a discretion, the order would only then
extend to directing that authority to comply with its duty of
deciding the matter properly.
The applicant has failed to
establish the requisites for a mandamus. He has not established a
statutory duty on the part of the magistrate to strike the matter
from the roll. There is simply no such duty upon a magistrate in
those circumstances. At the very best for the applicant, a magistrate
may have a duty to exercise his or her discretion in respect of the
applicant’s application to strike the matter from the roll.
This the magistrate did.
If the applicant is dissatisfied
with the outcome of that application he would need to consider other
remedies and not that of a mandamus. But quite apart from the legal
difficulties the applicant faces in seeking a mandamus, it is clear
to me that he has not established on the facts any entitlement to an
order of that nature. Nor has the applicant established any
entitlement to the alternative relief sought to a mandamus in
paragraphs 3 of the notice of motion.
apart from the legal difficulty which the applicant encounters with
paragraph four of the relief – seeking an order to compel the
Prosecutor-General and the Minister to charge the police officers for
contempt and perjury, it is also clear to me from the facts properly
approached in motion proceedings that there is not only a dispute of
fact on the question. On the
contrary, it would appear that some of the allegations levelled by
the applicant against the police officials and prosecutors concerning
his non appearance in court, extravagantly made, are without
As for the relief sought directing
the Ombudsman to provide a further report, the point taken by Mr
Dausab on behalf of the respondents, of non-joinder of the Ombudsman,
is well taken. Certainly, if any relief was to be sought against the
Ombudsman, he would at the very minimum need to be cited as a
respondent and the application served upon him. That did not occur.
There can thus be no question of even considering the relief
contained in paragraph 5 of the notice of motion. There was also no
attempt made to join the Ombudsman after the point was taken.
Although it follows that the
applicant is unsuccessful in this application, it is however
appropriate to stress the importance of securing the applicant’s
presence in court on the part of those responsible for his
incarceration. It is fundamental that an accused is entitled to be
present at each of his hearings, except of course if that were to be
impossible such as in circumstances where that accused is appearing
in another court on a very same day or physically unable to be in
court for any reason. If that were to occur, those reasons must be
properly provided to the presiding magistrate so that an enquiry can
be made, if the need be, in respect of them.
But the applicant has not
established in this application that the police or the prosecution
were culpable in respect of his non-appearances.
It accordingly follows that the
application is to be dismissed with costs.
A. Pienaar the applicant in person
AND 4TH RESPONDENTS: Dausab
by Government Attorney
See Baxtor Administrative
(1984) at p687.
See Baxtor supra at p690.
See Baxtor supra at p691.
Evans Paints (Pty) Limited v Van Riebeek
1984 (3) SA 623 (A).