S v Burger (HC-MD-CRI-APP-SLA-2017/00030) [2018] NAHCMD 133 (18 May 2018);

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Full judgment

IN THE  HIGH COURT OF NAMIBIA (TO THE SUPREME COURT OF  NAMIBIA)

Case Title: The State v Johannes Ludwig Burger

Case No.: HC-MD-CRI-APR-SLA 2017/00030 NAHCMD 133 (18 May 2018)

 

Division of Court: Main Division

Heard/tried before: Liebenberg J

Date  of hearing/Judgment:

18 May 2017

Result on merits (attach  order):

The application for leave to appeal is refused.

The order:

See order generated  by the e-justice system.

Reasons  for decision (to be completed by the Judge):

[1]      The State seeks leave in terms of section 310 (1) of the Criminal Procedure Act, Act 51 of 1977, as amended ('the CPA') against the court a quo's decision to discharge the respondent in terms of s 174 of the CPA. The State 's grounds of appeal are mainly premised on the decision of the Court a quo refusing to grant a further postponement.

 

[2]    Section 168 of the CPA reads as  follows:

'A court before which criminal proceedings are pending, may from time to time during such proceedings, if the court deems it necessary or expedient, adjourn the proceedings to any date on the terms which to the court may seem proper and which are not inconsistent with any provision of this Act'.

 

In addition the  court  in S  v Acheson 1991 NR 1 (HC)  at 88-C  stated that:  'an  adjournment  of a criminal trial is not to be had for the asking. It must be motivated in terms of the Criminal Procedure  Act on the grounds  that it would  be necessary  or  expedient  to do so'.

[3]    The issue for determination is therefore whether the Court a quo exercised its discretion in terms of s 168 of the CPA judiciously.

 

[4]          In the court below the reasons applicant advanced in support of its application for a further postponement  were that:

o Negotiations between the Namibian and South  African  governments  were  still ongoing for the attendance of the two foreign witnesses. Reasons for the delay as per the State prosecutor were that the witnesses stated they would only testify (a) if the State were to pay for a business class flight ticket in respect of the one witness and (b) would put up the second witness and his family in a five star hotel during his stay  in Namibia.

o      With regards to the Investigating Officer (the 1/0  ), it was stated that the 1/0 was

still ill as he was previously booked off for sick leave and therefor unable to attend court.

[5]      From the record of proceedings it is evident that the State did not lead evidence in support of the application  and merely placed the facts stated on  record.

 

[6]    The court a quo refused to further postpone the matter and deemed the State case to be closed. The reason the court a quo gave were that the State witnesseswere trying to keep the Court hostage. In addition, the witnesses were subpoenaed, despite that, they failed to appear before the Court. With regards to the 1/0 the magistrate stated that if he  had any interest in the matter he could have sent somebody to come and apply for a postponement on his behalf. Therefore, the court below found that the State 's application was not a proper application and the respondent would be prejudiced by a further postponement.

 

[7]        In the circumstancesthe State should have made a substantive application for postponement so that they could prove the allegations raised in court and satisfy the trial court that it was necessary or expedient to adjourn the proceedings. Moreover where the accused is faced with serious charges. The court had not been informed of   any progress made by the State in securing the attendance of its witnesses at court, and what the prospects are of doing so within a reasonable time. This was particularly necessary where the two witnesses from South Africa indicated their unwillingness to come to Namibia and had set unreasonable conditions.

 

[8]    In the premise I am satisfied that the court a quo judiciously exercised its discretion in terms of  s 168 and that there are no prospects of success on   appeal.

 

[9]      In the result, the application for leave to appeal is refused.

Judge’s signature:

Note to the parties:

 

The reason(s) hereby provided should be lodged other with any Petition made to the Chief Justice of the Supreme Court.

Counsel:

Mr Moyo

Mr Namandje

     

 

 

HC-MD-CRI-APP-SLA-2017/00030

IN THE HIGH COURT OF NAMIBIA, MAIN   DIVISION,

HELD  AT WINDHOEK

ON FRIDAY, THE 18th DAY OF MAY 2018 BEFORE  THE  HONOURABLE  JUSTICE LIEBENBERG

 

In the matter  between:

THE STATE                                                            APPLICANT

and

JOHANNES LUDWIG BURGER                             RESPONDENT


COURT ORDER


Having read the Applicat ion (in chambers  in terms of section 310(1)  of the Criminal Procedure  Act  51 of 1977) in case  no HC-MD-CRI-APP-S LA-2017 /00030  and other  documents  filed of record:

 

IT IS HEREBY ORDERED THAT:

The application for leave to appeal is refused.

 

BY ORDER  OF THE COURT

 

Thomas Holeinge Kasita Registrar of the High Court Main Divisio

Windhoek

TO:ERICK MOYO

 

 

AND TO:

 

On behalf of 1s t Appellant

Government - Office of the Prosecutor-General High Court Building Luderitz Street

Windhoek Namibia Namibia

 

Johannes Ludwig Burger Respondent

 

AND TO:

Windhoek Central{Mungunda)(Magistrate Court)

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