NO.: CA 03/2009
THE HIGH COURT OF NAMIBIA
the matter between:
ALFREDO MENDE TIMOTEUS NAMBALA APPELLANT
on: 26 February 2009
– BAIL APPEAL
AJ  This is
an appeal by the appellant against the refusal of bail by the
magistrate in the Outapi Magistrate’s Court.
appellant was charged in the Magistrate’s Court for contravening
Section 46 of Act 81 of 1963, i.e. providing false information to be
inserted in the birth register.
grounds on which the appeal is founded are the following:
magistrate erred in law or in fact by finding that:
appellant will abscond and will not stand trial;
the appellant was not a Namibian national;
it will not be in the interest of society and administration of
justice if accused is granted bail;
the release of the accused on bail will jeopardize the interest of
because the State fears that accused will abscond, bail cannot be
accused’s release on bail will jeopardize the State case.
appellant in the court a
was represented by Ms F Kishi.
grounds for the State to oppose bail were:
risk of absconding;
administration of justice.
State representative before us Mr Shileka raised, points in limine
in his heads of argument namely:
Notice of Appeal should contain grounds upon which such appeal is
based. Those grounds must be set out clearly and specifically as
provided by Rule 67 (1) of the Rules of the Magistrate’s Court.
That the notice of appeal falls short of the mark set by Rule 67 in
the sense that the grounds outlined are based on the findings,
aspects or issues which were not canvassed by the learned magistrate
in the court a
67 (1) of the Magistrate’s Court dictates that an appellant must
file a notice of appeal within 14 days after the date of sentence or
order in question. In casu
bail application was dismissed on the 1st
of December 2008 and the notice of appeal is dated 17th
December 2008. In other words the notice of appeal was filed out of
time therefore the appellant was supposed to file an application for
condonation of his/her non compliance with the Rules of the Court as
a matter of law.
the other hand the Counsel for the appellant Ms Kishi appears to have
conceded that the notice of appeal was not filed within the
prescribed time and filed a notice of motion applying for:
of the late filing of the notice of appeal.
and or alternative relief.
now wish first to deal with the issue of the late filing of the
notice of appeal.
appellant was refused bail on 1st
December 2008 and a notice of appeal was lodged on 17 December 2008
which means that it was lodged within 14 days therefore, not out of
time. The 14 days would only have lapsed on 22nd
computing of any time expressed by the Rules of Court in days the
following should be excluded 1st
day, Saturday, Sunday or public holidays, but inclusive of the last
day. See Section 4 of the Interpretation Act, Act 33 of 1957.
view is supported by the Rules of the High Court to be specific Rule
1 definitions which defines “court day” to mean any day other
than a Saturday, Sunday or public holiday and only court days shall
be included in the computation of any time expressed in days
prescribed by these rules or fixed by any court order.
court arrives at the conclusion that the notice of appeal was filed
within the prescribed period.
now turn to the 2nd
point in limine
which was raised by Counsel for the State namely that the notice of
appeal filed by the appellant is not a valid notice of appeal as the
appellant does not set out clearly and specifically the grounds of
appeal, therefore it falls short of the requirements set by Rule 67,
in the sense that the grounds outlined are based on findings or
issues which were not canvassed by the learned magistrate in the
court a quo.
Therefore, the State prayed for the case to be struck from the roll.
Kishi for the appellant submitted that there might be some repetition
of the grounds addressed in the notice of appeal and that more
grounds were raised than necessary but argued that the notice
complies with the requirements. She even went further by saying that
if the notice did not comply with the requirements, the magistrate
would have expressed herself on the vagueness of the notice of
appeal. Among the grounds of appeal stated by appellant are:
the appellant will abscond and will not stand trial;
the appellant was not a Namibian national and;
it will not be in the interest of society and administration of
justice if appellant is granted bail.
Court having given due consideration to the arguments advanced by
both Counsel and to the grounds of appeal in the notice this Court is
of the opinion that the Notice of Appeal meets the requirements as
prescribed in Rule 67 (1) of the Magistrate’s Court. The grounds
were based on the reasons advanced by the Court when it made its
ruling whether to grant bail or not and this Court does not expect
the appellant’s counsel to be more specific because there is
nothing more on the record for her to deal with.
shall now deal with the bail proceedings held in the Magistrate’s
Court, Outapi on 24 November 2008.
Appellant and his common law wife testified in support of his formal
application for admission to bail. The Appellant testified that he
was born at Okandikalela during December in 1976; his parents are
both deceased, his father was a Kavango and his mother was a Ndongona
who was born near Epalela in Namibia; he grew up in Rundu and in 2003
he came back and stayed at his house; he survives by selling
cassettes; he is married to one Ndapandula Kapweya with whom he has
two children; he is a father of eight children, six of them are born
of different mothers and the elder child being ± 4 years old.
Rundu he went to Walvisbay where he stayed for six years. He was
baptized in 1992 at Walvisbay, however his baptism certificate was
destroyed by fire. He managed to obtain a Namibian identity document
as well as a passport after submitting his baptism certificate to the
Appellant identified an identity document and a copy of an expired
passport which he indicated were taken from him by the immigration
officer earlier. It appears from the appellant’s testimony that
these documents were taken from him by the immigration officers who
kept them and only returned them to the appellant after seven months.
According to the appellant the reason for the immigration officers
to take the documents from him is because they suspected him to be an
Angolan citizen. The appellant testified that he is a Namibian
citizen. He further testified that he takes care of his children and
his wife, the latter being unemployed, making him the sole
appellant prayed for the Court to grant him bail in the amount of
N$700. 00 coupled with conditions to report himself to the police.
He further testified that he had no intention to abscond and, if he
intended to, he could have done so already in the first instance
before he was arrested.
Under cross-examination the appellant disputed to be known as
“Munepembe Alfredo Nambala” and indicated that his name is Mende
Timoteus. He disputed to have been born at Ihinga in Angola. The
appellant testified that his mother is Theresia Nambala and not
Florida Kauluma, who lives at Ehinga in Angola. When the appellant
was confronted by the State, that in Rundu, he was staying at the
house of Theresia Nambala, who happened to be his sister, the
appellant said she is her mother’s sister. He testified that he
has relatives in Angola namely cousins who are staying at Ehinga. The
appellant further testified that he will not run away because the day
his documents were confiscated from him, was not the date he was
apprehended. When the police came to look for him he was not at home
and upon hearing the message that the police were looking for him, he
went to report himself to the police.
appellant testified that at that stage the police were looking for
him because he was practicing as a traditional healer.
The second witness who testified on behalf of the appellant was
Ndapandula Kapweya who was traditionally married to him. She did not
say much apart from saying she met with the Appellant at
Okandiikalela in 1993 and that currently they are staying at Oshifo.
She further testified about the children she has with the appellant
and the other children born by the appellant with other women.
State called Anna Hauwanga who is the immigration officer at
Omahenene border post. She testified that she met the appellant on
15 October 2008 at Oshifo Town Council when she was summoned to
attend a meeting of the traditional healers and the appellant was one
of the participants who participated as a traditional healer. Other
participants suspected the appellant to be a foreign national.
the information she received from the Councillor, she asked the
appellant for his national documents. The appellant produced an
identity card and an expired Namibian passport. She inquired from
the appellant where he was born and the appellant said he was born at
Okandiikalela at Mr Manene’s house. The appellant told the witness
that his mother is Theresia Nambala who resides at his late father’s
house. The witness was not satisfied by the appellants explanation
and asked the appellant to give them one of his relative’s names
who is staying at Okandiikalela. He mentioned one Nambahu Hambondo
who is allegedly staying at Eunda, which casted further doubts in the
mind of the witness concerning the appellant’s nationality.
State witness decided to go with the appellant’s identity document
and the expired passport and started to investigate by inquiring from
people who were coming from Angola if they knew the appellant. One
person confirmed to the witness that he knew the appellant and that
the appellant came from Ehinga in Angola. The witness testified
further that on 30 October 2008 she and Mr Tobias drove to Ehinga,
Angola which is about 70km from the Namibian border. They went to
one councillor in Angola by the name of Pasqual. The councillor told
them that he knows the appellant by the name Munepembe, who was born
in Angola and he practices as a traditional healer. Pasqual then
took the witness and his companion to Ms Frolida Kauluma. The
witness showed the appellant’s identity documents to Ms Kauluma and
asked her if she knew the appellant. Ms Kauluma identified the
identity document of the Appellant as that of her son Munepembe
Alfredo Mende Da Silva who is her 8th
child. Ms Kauluma further told the witness that her first born is
Theresia Nambala. The witness further testified that the appellant
got the Namibian identity documents by providing false information to
the officers concerned. It is the evidence of Ms Hauwanga that if
the appellant is granted bail he will abscond to Angola.
cross-examination the appellant’s Counsel put it to the witness
that there is no law which prevents a foreign national to be granted
bail. The witness conceded, however she expressed an opinion that
there is a possibility for him to go to Angola because when they were
looking for him on 30 October 2008 he was said to be in Angola.
further cross-examination on whether the appellant reported himself
to the police the witness testified that the appellant reported
himself because he was told that the headman and the villagers wanted
to chase him away from the village and the police would offer him
the question why the appellant did not run away if he knew that the
investigation against him already started on 28 October 2008 the
witness, said that the Appellant did not know that he was going to be
further cross-examination on why the appellant should be arrested if
he is in possession of Namibian documents, the witness said that
despite appellant insisting that he is a Namibian citizen, there is
information from his mother that he is not.
magistrate, having summarized the evidence, concluded that it is not
in the interest of the administration of justice that appellant be
released at this stage and that he be detained until the finalization
of the case as the State is casting doubts of absconding.
appellant is now attacking the conclusion reached by the learned
Kishi submitted on behalf of the appellant that no sufficient grounds
were adduced before the court a quo that the appellant will abscond.
If the appellant wanted to abscond he could have done so before his
arrest. She further argued that the interest of justice was not at
stake as appellant reported himself to the police. In addition she
referred to a passage in the unreported case of Charlotte
Helena Botha vs The State, CA 70/95
delivered on 20 October 1995 that the Court ignored the guidelines
spelled out in that case namely; that the reasons should be stated
clearly why it is said that the appellant might abscond and not stand
Kishi argued further that no matter what the appeal court’s views
are, the real test is whether the magistrate who had the discretion
to grant bail, exercised his or her discretion wrongly. The Court
will always grant bail, where possible and will lean in favor of and
not against the liberty of the subject, provided it is clear that the
interest of justice will not be prejudiced.
will now consider the submissions made by the Counsel for the
is trite law in bail applications that the onus of proof lies with
the appellant to prove on a balance of probabilities that he or she
will stand his trial and not abscond if released on bail.
State has the general duty to place evidence before court, the facts
revealed by the investigation and in particular, whether or not the
State has a strong case and the nature of that case.
the same vein the appellant’s legal representative has a similar
duty to lay a proper factual basis upon which a bail application can
be determined, and if, for one reason or another this is not done the
Court itself should play an activist or inquisitorial role and
conduct an enquiry into the matter where the circumstances justify
it. See Lazarus
Shaduka vs The State, CA 119/2008 NA HC
delivered on 24 October 2008.
Helena Botha vs The State
paragraph 15 – 16, O’ Linn, J (as he than was) stated the
opinion of the investigation officer or questions as to whether or
not it is likely that the accused will abscond, or interfere with
state witness or with the investigations as distinguished from facts
placed before court should also carry weight.”
this case there is evidence that the appellant’s mother is in
Angola, although he claimed in his evidence that she is deceased.
Through cross-examination he claimed that his mother is Theresia
Nambala just to change his version again that Theresia Nambala is his
mother’s sister. There is also information that when the police
were looking for the accused he was said to be in Angola. Although
this evidence is hearsay, there is ample authority that hearsay
evidence is admissible in bail applications. As to the issue that if
the appellant wanted to run away he could have done so since he was
aware of the fact that the police were looking for him, in fact there
is evidence from Ms Hauwanga that the appellant was not aware that
the police were looking for him in connection with the charge he now
the contention that no facts were placed before the court a
on which the magistrate could have formed an opinion that it would
not be in the interest of the administration of justice, I wish to
consider the following;
the traditional approach questions considered by the Courts are
firstly whether the appellant has proved that he or she will stand
trial, secondly whether there is a reasonable likelihood that if
released on bail the appellant will interfere with witnesses or
tamper with the relevant evidence or cause such to be suppressed and
thirdly, how prejudicial it might be for an appellant to be kept in
custody by being denied bail. (S v Acheson supra
page 19 – 20)
Mr Shileka rightly pointed out that this Court is bound by the
provisions of Section 65 (4) of the Criminal Procedure Act, Act 51 of
1977, not to set aside the decision against which the appeal is
brought unless such court is satisfied that the decision was wrong.
the Criminal Procedure Act had been amended by Act 5 of 1991 to the
effect that bail may be refused if, in the opinion of the Court, it
is in the interest of the public or in the interest of the
administration of justice that the accused be retained in custody
pending his or her trial, notwithstanding that the Court is satisfied
that it is unlikely that the accused, if released on bail, will
abscond or interfere with any witnesses or with the police
investigation. The question when it will be in the interest of the
public or in the interest of the administration of justice has
previously been considered by this Court and the difficulty in
defining those concepts was recognized, but nevertheless it was held
that these concepts should be given a wide meaning.
which may be considered are the pronouncement of the Courts over a
long period and of the legislature, as crystallized in legislation,
whether the release on bail is likely to constitute a threat to the
safety of the public or the maintenance of public order, where there
is a strong prima
case against an accused, a Court will be entitled to refuse bail even
if there is only a reasonable possibility that the accused will
abscond or interfere with state witnesses.
is trite law that an appeal court will not interfere with the
findings of a magistrate unless it is persuaded that the magistrate
exercised her/his discretion wrongly.
v Barber 1979 (4) (SA) 218 (SWA) at 220 E – H
cited with approval and referred to in Timotheus
Joseph v The State unreported CA 63/95
Gunter Koch v The State unreported CA 111/2002
delivered on 12 December 2002 when Hefer, J stated the following:
is well known that the powers of this Court are largely limited where
that matter comes before it on appeal and not as a substantive
application for bail. This court has to be persuaded that the
magistrate exercised the discretion which he has wrongly.
Accordingly although this court may have a different view it should
not substitute its own view for that of the magistrate because that
would be an unfair interference with the magistrate’s exercise of
his discretion. I think it should be stressed that no matter what
this court’s own views are the real question is whether it can be
said that the magistrate who had the discretion to grant bail
exercised that discretion wrongly..”
magistrate in refusing bail considered the interest of the
administration of justice. I am not persuaded that the discretion
was exercised wrongly. As previously stated the witness for the state
testified that the appellant’s mother Florida Kauluma resides in
Angola. The appellant on the other hand said his mother is deceased,
however he again changed his version to say that his mother is
Theresia Nambala, but who turned out to be the appellant’s sister.
This may very well bring the credibility of the appellant into
question as it would appear that appellant deliberately tried to hide
his place of origin. This must have a bearing on the question
whether appellant will stand trial before a court of law. I am of
the opinion that the magistrate did not misdirect herself in finding
that it would not be in the interest of the administration of justice
to release the Appellant on bail.
appeal is dismissed.
ON BEHALF OF THE APPELLANT:
Ms. F Kishi
ON BEHALF OF THE RESPONDENT:
of the Prosecutor-General.