Court name
High Court
Case number
CA 160 of 2007
Title

S v Pentz (CA 160 of 2007) [2008] NAHC 104 (02 June 2008);

Media neutral citation
[2008] NAHC 104





CASE NO







CASE
NO. CA 160/2007


IN
THE HIGH COURT OF NAMIBIA







In
the matter between:






ANDRE
PENTZ APPELLANT







and







THE
STATE RESPONDENT







CORAM: SILUNGWE,
A.J.
et
Frank, A.J.







Heard
on: 2008.06.02



Delivered
on: 2008.06.02
(Ex
Tempore)



_______________________________________________________________


JUDGMENT



FRANK,
A.J.:



[1] This
is an appeal against the decision by the Regional Magistrate’s
Court on the 17
th
of September 2007. The appellant at that stage and today still is
facing a charge of murder, but was released on bail. At the time of
the hearing in the Regional Court the bail conditions were as
follows, namely, the appellant was released on bail of N$10 000.00
coupled with the following two conditions, namely that the Namibian
police or the office of the Prosecutor-General would be placed in
possession of the appellant’s South African passport which they
could return to him in their discretion when applied for it by the
appellant on temporary basis to go to South Africa for business
reasons or for whatever other purpose. The second condition was,
that he had to report on the first Thursday of every month at the
Windhoek police station. These conditions that are stipulated were
essentially agreed on between the parties.







[2] The
evidence of the appellant which he gave under oath at the Regional
Court was to the effect that in the past whenever he wanted to visit
his family in South Africa or intended to go on business to South
Africa his passport was handed to him and there was no problem, and
that on his return from South Africa he then handed it back to either
the investigating officer or the Prosecutor.







[3] As
far as the second condition is concerned he testified that the
situation at the police when he wanted to report was not up to
scratch in that his file was never at hand and they had to look for a
file and create documents so as to enable him to report, and as far
as he was concerned this reporting became a nonsensical matter
because it was clear that the police did not apply their minds to
this as they did not even have his file with them.







[4] I
interpose here to say that the arrangement as mentioned above
apparently caused the appellant no problems until the temporary
handing over of his passport was refused, i.e. a request for the
delivery of his passport was refused when he wanted to go to South
Africa during the period December 2007 to January 2008 over the
Christmas holidays to visit his family. This refusal prompted him to
bring an application to the Regional Magistrate’s Court. It is
this application that forms the subject of this appeal.







[5] In
that application, the main thrust whereof was that the bail
conditions be set aside, his complaint was that his passport was not
handed to him as it was done about seven times previously and the
chaotic conditions at the police station. At the hearing of the
application the appellant gave evidence. The State tendered no
evidence whatsoever although it cross-examined the appellant. In the
evidence the appellant testified that should the Regional Court not
be satisfied that his bail condition be changed he was asking an
order from the Regional Court that his passport be handed over to him
for two purposes; namely, to visit his family as already mentioned,
and secondly he had to apply for a renewal of his residence permit
which was about to expire and that he needed his passport for that
purpose as well.







[6] The
lawyer who appeared on behalf of the appellant also in that Court
indicated in the alternative to the application to have the two
conditions set aside, that in the alternative he would seek an order
to have the appellant’s passport handed back to him for the
purposes of his visit to South Africa and for the purpose of the
application for the renewal of his residence permit. The person who
appeared for the State at the hearing consented to the handing over
of the passport for the purpose of applying for the residence permit.
After hearing this evidence and despite the concession by the person
who appeared for the State the Regional Magistrate simply dismissed
the application.







[7] In
the reasons forthcoming for this appeal the Regional Magistrate
ignores the alternative relief, namely, the temporary relief of the
handing over of the passport for the purposes of travel to South
Africa and for the application for the residence permit and
concentrates solely on the other conditions of the bail. I am not
sure whether the magistrate, in view of the fact that the time period
for which the possession of the passport was intended had expired,
decided not to deal with this aspect or whether the magistrate in
fact misdirected herself at the time of the hearing by not dealing
with this aspect at all.







[8] The
evidence by the appellant which was not challenged at all to the
effect that on seven previous occasions he was handed his passport
for travel to South Africa by the police or the Prosecutor cannot be
ignored and no reason was forwarded on behalf of the State as to why
on this occasion they would not consent to this procedure.
Similarly, as indicated already, the State agreed or consented that
he should be handed his passport for the purpose of the renewal of
his residence permit.







[9] The
question that thus arises is whether the magistrate should have
granted the relief applied for, namely, the cancellation of the two
conditions and alternatively the relief relating to the temporary
handing over of the passport to the appellant.







[10] As
far as the main application is concerned as indicated already these
conditions were basically set by agreement with the accused.
Furthermore as is also evident from his evidence he did not have a
problem with these conditions, save for the chaotic nature of what he
found at the police station, in the sense that they interfered with
his business or with his social life to any great degree. His real
problem which also caused the bringing of the application was the
sudden refusal to hand him his passport when in the past it was
handed to him without queries.







[11] Mr
Botes submitted that both these conditions are actually of no value
at all and should have been scraped by the magistrate. I do not
agree. The handing over of the passport to be kept in custody by the
investigating officer or the Prosecutor-General is a measure in terms
whereof the prosecution can take notice of the applicant’s
movements who is a South African as already mentioned. It is
indicative of the fact that the chances of him absconding is not very
high but it still gives the prosecuting authority some measure of
control and of knowledge of the applicant’s movements. In this
way they can at least take immediate action if the applicant does not
honour his commitment to return and I would assume they also take
care to see for what purpose the applicant needs the passport and to
take cognisance of where he is going and where he can be contacted
and when he will be coming back from South Africa so that if anything
untoward happen they can follow the matter up immediately.







[12] Similarly,
the condition as to the reporting to the police is in the same vein
and the fact that the police, administratively, are not doing it as
they should, I do not think assists the appellant. The condition is
there for a certain purpose and it should be exercised for this
purpose, and I can just implore the police to ensure that the proper
procedures are in place to make sure that this limited amount of
control and/or tracking of the applicant’s movement is kept in
place in view of the fact that he is facing a serious charge coupled
with the fact that he is a foreign national.







[13] I
am thus not convinced that as far as the bail conditions are
concerned that anything should be done to change them, and in fact,
as I have already indicated, they did not seem to bother the
appellant too much when the discretion of the authorities was
exercised in his favour and in fact he initially agreed to these
conditions.







[14] As
far as the temporary returning of his passport was concerned, for the
purposes of visiting South Africa during the last December holiday
and to apply for his residence permit to be renewed, the matter is
somewhat different. In view of his evidence that permission was
granted to him without problem on numerous previous occasions and the
fact that the State did not indicate at all on the record what their
problem was on this occasion when they refused it, in view of the
fact that the State conceded that he should be able to apply for his
residence permit and that for that purpose he needed his passport,
the magistrate should have granted at least that application after
hearing the evidence.







[15] The
temporary order that was sought is actually of academic interest now,
but in my view, just for the record and to put the record straight,
the order that the magistrate should have granted is the following:



(a) That
the Namibian police and/or the office of the Prosecutor-General is
ordered to return the appellant’s passport to him immediately:








  1. to
    enable him to travel to South Africa for the period 13 December 2007
    to 15 January 2008, both dates inclusive; and




(ii) to
enable him to apply for the renewal of his residence permit.







(b) The
condition that the accused is to report to the Windhoek police
station is suspended during the period 13 December 2007 to 15 January
2008.







(c) The
accused is ordered to hand back his passport to the investigating
officer after his return from South Africa and/or after the renewal
of his residence permit whichever is the latest.







(d) The
accused’s bail in the amount of N$10 000.00 is extended until
the 22
nd
of February 2008 being the next date of the appearance of the accused
in the Regional Court, Katutura.







(e) The
accused is warned to appear in the Regional Court, held at Katutura
at 08:30 on the date referred to, and to remain present at Court
until his case is called.







[16] As
mentioned, this is the order that the magistrate should have given.
The question that arises is: what order should this Court give now?
As indicated, I am not satisfied that the accused made out a case for
the bail conditions to be changed at all and consequently, these bail
conditions should remain as before.







[17] I
however do wish to point out that the prosecuting authority must take
cognisance of the remarks aforesaid and that the return of the
passport to the appellant on request is not to be refused on
capricious reasons but is to be considered on a case by case basis.
And secondly, I direct the investigating officer to assist the
accused in his application for the renewal of his residence permit
and in this regard to make the passport available to the relevant
authorities to consider this application and to affix the necessary
stamp if the application succeeds.







[18] Accordingly,
save for what is stated above, the appeal is dismissed.

















FRANK,
A.J.







I
agree









SILUNGWE,
A.J.































ON
BEHALF OF THE APPELLANT Mr Botes



Instructed
by:







ON
BEHALF OF RESPONDENT Mr Shileka



Instructed
by: Office of the Prosecutor-General