CASE NO.: CC23/2008
HIGH COURT OF NAMIBIA
& 12 November 2010
on: 28 January 2011
- BAIL APPLICATION:
The accused is charged with one count of murder and robbery with
aggravating circumstances. In the summary of substantial facts, the
State alleges: "The accused, who was born on 10 July 1979, is
the biological son of the deceased. On an unknown date, prior to
Sunday 17 December 2006 and at the residence of the deceased, the
accused travelled from Walvis Bay to Windhoek with the intention to
kill the deceased. On 17 December 2006 and at the residence of the
deceased, the accused boiled water and poured it over the body of
the deceased and he fractured some of her ribs. He also stabbed her
several times with at least two knives. The deceased died on the
scene, due to injuries sustained. Before he left the scene, the
accused took N$20,00 cash money which was the property of or in the
lawful possession of the deceased.
The accused was arrested on 19 December 2006 and has been in custody
since. His trial had commenced before me and could not be finalized
and has been postponed to 9 - 13 May 2011. He has been in custody
for almost 4 years now. At the commencement of the trial, the
accused pleaded not guilty and the basis of his defence was that "at
the time he committed the crimes, he was suffering from a mental
defect caused by many years of substance abuse more particular
marijuana and that he was psychotic when he committed the offences."
The accused applied to this Court to be released on bail. Mr.
Wessels appears on behalf of the accused. The State, represented by
Ms. Moyo, opposed the application for bail on three grounds, namely:
The fear that the accused is likely to abscond if released on bail
pending the finalization of his trial;
if released on bail, the accused person is likely to commit
it will prejudice the interest of the Administration of Justice if
granted to the accused.
The accused testified in support of his bail application. He is 31
years old and a Namibian citizen. His father is Immanuel Ngatjizeko
(the Minister of Labour and Social Welfare). In 1980 he went into
exile to Angola with his mother. In Angola he was separated from his
mother and was raised in a refugee camp. Later his mother left and
went to India and he returned to Namibia in September 1990, and
stayed with his father and attended People's Primary School in
Windhoek. He completed grade 12 at Concordia College, Windhoek. In
1998 he enrolled at the University of Namibia (UNAM) for a Bsc
degree, majoring in chemistry and biology. After 2 years of study,
he won a scholarship to go to Czech Republic where he enrolled for a
degree in economics. He struggled to learn the Czech language and
lost interest in his studies. He was kicked out of university and
stayed in Prague with his friends. He started drinking and using
drugs. He returned to Namibia in 2003 and in the same year enrolled
at the Polytechnic of Namibia for a diploma in Media Studies. After
3 months he abandoned his studies. He joined the Namibia Defence
Force (NDF) and while in the force he continued using drugs. He was
in the NDF for seven months. In 2004 he was arrested for possession
of drugs and stood trial at Okahandja magistrate's court. Before the
completion of his trial, he absconded and fled to Zimbabwe. In
Zimbabwe he was arrested for theft and contravention of the
Immigration Act. He spent seven months in custody and in September
2005 he was deported back to Namibia. In
he stayed at his father's house and sometimes at his mother's house.
In order to maintain and feed his drug habits he stole money from
people. In January 2006 he left for Cape Town, and stayed with
Rastafarians in Philipi, continued smoking dagga and using drugs.
There, in Cape Town, he was arrested and deported in August 2006
back to Namibia. In September he moved to Walvis Bay to look for
employment. Continued with his drug habits, got money for his drug
addiction from friends and from stealing. He returned to Windhoek
around December 2006. He testified that if he is released on bail
(admitted to bail) he will not abscond and will be residing at his
girlfriend's house (No 160, Theo-Ben Gurirab Street, Walvis Bay). He
has no problem to report 2 or 3 times per day to the police station.
He further testified that his father is in position to pay bail in
the amount of N$10 000,00. He has no passport and no property,
either immovable or movable, of his own.
He further testified that he was a changed person. He does not use
drugs anymore and has converted to Islam, prays and reads the Khoran
on a daily basis.
Mathilda Haimbambe was called to testify for the accused. She
testified that she is 32 years old and a Namibian citizen. She is
employed at the Ministry of Fisheries as an inspector in Walvis Bay.
She resides at no 160, Theo-Ben Gurirab Street, Walvis Bay. She owns
that house since 2007. She and the accused started a romantic
relationship in 1994 and it was an on-and-off relationship. She
testified that she does not have a problem for the accused to come
and reside at her house, if released on
That was the case for the accused.
The State called Namtunga Julius. He is employed by the Ministry of
Safety and Security since 1996. He is the head of security at
Windhoek Central Prison. His duties include, inter
ensure that offenders are in safe custody, to ensure that no
unauthorized articles are brought into prison. He testified that
offenders do sometimes, on rare occasions, bring in drugs, but in
very small quantities. He further testified that the accused is
generally a well behaved prisoner. Exhibit "J" (an
affidavit by Mr. Immanuel Ngatjizeko, setting out the curriculum
vitae or course of life of the accused was admitted in evidence.
That was the case for the State.
Mr. Wessels submitted that the accused is innocent until proven
guilty and the court should ordinarily grant bail unless this is
likely to prejudice the ends of justice. He further submitted that
there is a reasonable chance that the accused may succeed with his
defence. In support of his submissions he referred this Court to the
two psychiatrist reports (exhibits "K" and "L")
which were admitted in evidence. The report by Dr. Reuben Japhet
(exhibit "K") under the headline 'findings' states:
According to available particulars, the accused at the time of the
commission of the alleged offence was having a mental defect as
supported by the findings that he has been smoking marijuana for
many years and he was psychotic when he committed the alleged
offence. Because of psychosis, his cognitive function was greatly
impaired and as such, he:
not fully capable to appreciate the wrongfulness of his act
Was not fully capable of acting in accordance with an appreciation
of the wrongfulness of his act.
accused is currently in good remission. He should be regarded as fit
to stand trial with diminished capability. The accused is not longer
mentally ill. He is fit to stand trial with diminished
The second report compiled by Dr. Mthoko (exhibit "L"),
(the relevant finding) states:
the time of the commission of the alleged crime, the accused did
suffer from a mental disorder as supported by his history using
psychoactive substances. Although he understood the nature of what
he was doing, his action was the consequences of a delusion and
therefore his ability to appreciate the wrongfulness of his alleged
offence and act in accordance with such appreciation was
The report by Dr. Japhet is contradictory. Contradictory in the
sense that it states that 'at the time of the commission of the
crime, the accused was psychotic and because of psychosis, his
cognitive function was greatly impaired and as such he was not fully
capable to appreciate the wrongfulness of acting in accordance with
an appreciation of the wrongfulness of his act'. Yet at the end of
the report the doctor concludes that the accused is no longer
mentally ill. He is fit to stand trial with
capability. If he is no longer mentally ill, where does the issue of
diminished capability comes from? It appears that the diminished
capability that the doctor refers to was at the time of the
commission of the crimes. Ms. Moyo submitted that the psychiatric
reports establish that the accused might have suffered from a state
of diminished responsibility at the time of the commission of the
offences and it only 'serves to reduce the accused person's moral
blame worthiness in the light of the gravity of his conduct. In
essence all what it does is to mitigate or reduce the sentence which
otherwise would have been meted out on the accused under normal
I do not wish to express myself on those submissions at this stage.
The trial is still pending, the accused must still come and testify.
However it appears that for the defence of mental illness to succeed
all factors must be taken into account. The State, the defence and
even the Court has the right to call the psychiatrists to come and
testify about the reports and to clarify the content of the reports
in order for the Court to be in a position to indeed conclude
whether the accused was mentally sick or not when he committed the
the accused a flight risk?
In answering that question there are certain factors that the court
must take into account. For instance, is it more likely that the
accused would stand his trial or is it more likely that he would
abscond and forfeit his bail? The determination of that issue
involved a consideration of sub-issues such as:
How deep his roots are in Namibia;
What assets he owns in Namibia;
What means does he has to flee from the country;
How much he could afford the forfeiture of the bail money;
How serious was the offence in respect of which he had been charged;
How strong the case against him was and how much inducement there
would be for him to avoid standing trial.
v Anderson 1991
It is trite law that the onus is on the accused to prove on
preponderance of probabilities that he will not abscond if granted
bail. In casu, the accused testified under oath that he will not
abscond, if granted bail.
v Hudson 1980(4) SA 145D of 148E: Thirion
J cautioned about accepting the mere say so of the (accused) when he
said the following:
an accused applied for bail and confirms on oath that he has no
intention of absconding due weight has of cause to be given to this
statement on oath. However, since an accused who does not have such
an intention is hardly likely to admit it, implicit reliance cannot
be placed on the mere say-so of the accused, the court should
examine the circumstances."
I now proceed to examine the circumstances in this case. In 2004 the
accused was arrested and charged with possession of dagga while
serving as a recruit in the NDF (Namibian Defence Force). He
appeared in the magistrate's court sitting at Okahandja and while
awaiting trial (and to avoid standing trial), he managed to abscond
and fled to Zimbabwe without any documentation. If the accused
absconded for a relatively minor charge of (possession of dagga),
how much more will the urge be to avoid standing this trial when he
faces serious charges of (murder and robbery with aggravating
circumstances) and, if convicted, he faces lengthy jail terms? In S
v Nichas and other 1977(1) SA 263, it
was observed that: [i]f there is a likelihood of heavy sentences
being imposed, the accused will be tempted to abscond. In S
v Hudson 1980(4) SA 145(D) 146, it
was asserted that the expectation of a substantial sentence of
imprisonment would undoubtedly provide an incentive to the accused
to abscond and leave the country. I fully agree with those
observations. Since his return from Zimbabwe he has not reported
himself to the authorities, he is still a wanted man. In addition he
managed to go to South Africa without the necessary documentation.
Although he claims that he does not have a passport, the borders of
Namibia are easy to cross at unmanned points.
In addition the accused does not own any movable or immovable
property in Namibia. He also testified that his father agreed to pay
N$10 000,00 if bail is granted. That is no incentive for him not to
abscond, the N$10 000,00 is not his money and if he absconds and the
N$10 000,00 is forfeited to the state, what does he stand to lose?
Nothing! The testimony by his girlfriend that she will provide him
with a physical accommodation is also not convincing. Their
relationship was not a steady one. What will change this time and
more so having regard to the fact that he faces serious charges. In
addition there is strong prima
against the accused person. He admitted that he stabbed his mother
to death although he says he was mentally sick at the time he
committed the offences.
For all those reasons, I am not satisfied that the accused
discharged the onus of proving that he will not abscond if granted
released on bail, is the accused likely to commit further offences?
On his own admission, the accused was addicted to drugs especially
dagga. He testified that in order to feed or fulfill his drug habit
he would steal from other people. He testified that he has now
stopped taking drugs and has converted to Islam. Up until the date
of his arrest, the accused was still using drugs. He only stopped
when he was incarcerated and in all likelihood because it was
difficult to get drugs in prison. He has not underwent any
rehabilitation for his drug addiction of many years and nor did he
testified that he intends to seek professional help to avoid using
drugs again. The temptation (especially without having obtained
professional help) is high and I am not convinced that the accused,
once released on bail, will not go back to his old habits and start
using drugs again. And once he start that, being unemployed, he will
resort to stealing in order to feed his drug habit and thus
committing further crimes.
it prejudice the interest of the administration of justice if bail
is granted or put differently, is it in the public interest to
release the accused on bail?
Even if I am wrong, which I doubt, on the other two grounds on which
I refused bail to the accused, I am fortified by the fact that it
will not be in the public interest to release the accused on bail.
The accused is charged with serious crimes against his own mother.
The Court has seen the 'beastly, cruelty and savagery' with which
this murder was accomplished' (in the words of Ms. Moyo). The
deceased was stabbed 39 times all over her body. As if that was not
enough, he took time to boil water and poured the boiling water over
her body causing 2nd
The violence and brutality against the vulnerable in our society,
especially women and children, is escalating at an alarming rate.
Almost every day we read in newspapers how women and children are
being assaulted and killed by men for petty issues. These crimes
against them evoke a sense of helplessness in the national
character. They are crying for protection from the Courts and other
law enforcement agencies and for this Court to release the accused
on bail (while his case is pending) is to ignore that call for
protection. It will simply not be in the public interest to do so.
I am mindful that the accused has been in custody for over 4 years
now and, if convicted, the period of years spent in custody will
undoubtedly be taken into account in determining an appropriate
For all those reasons, the application to release the accused on
bail is refused.
BEHALF OF THE STATE: Ms.
BEHALF OF THE ACCUSED PERSON: Mr.
of Legal Aid