Court name
High Court
Case number
CA 92 of 2009
Case name
Schnugh v S
Media neutral citation
[2011] NAHC 13





REPUBLIC OF NAMIBIA










CASE
NO. CA 92/2009











IN
THE HIGH COURT OF NAMIBIA






In
the matter between:









SYDNEY
CLAUDE SCHNUGH



versus


THE
STATE











CORAM:
VAN
NIEKERK, J
et
PARKER,
J










Heard:
24 May 2010 Delivered: 31 January 2011









JUDGMENT



VAN
NIEKERK, J:

[1]
The appellant was arrested on 19 December 2008 on allegations of
theft by false pretences and theft by conversion of a motor vehicle
valued at about N$70 000. A bail application brought in the
magistrate's court was unsuccessful, the magistrate having dismissed
the application on the grounds (1) that the appellant had not
discharged the

onus resting on him of showing on a balance of probabilities that he
would not abscond and stand his trial; and (2) that it would not be
in the interests of the public or the administration of justice to
release the appellant because (i) he had evaded arrest; and (ii) the
investigation was incomplete.









[2]
The magistrate's decision was appealed. This Court
(per
MANYARARA
AJ
and S
WANEPOEL
AJ
(as he then was) found that the magistrate had committed no
misdirection and on 13 March 2009 dismissed the appeal.









[3]
On 4 September 2009 appellant launched a second bail application
before the same magistrate on what were alleged to be new facts.
These were (i) the lengthy period of incarceration which had passed
while the police investigation had not been finalized; (ii) as a
result, there is a decreased risk of interference by the appellant in
the police investigation; and (iii) the fact that there had not been
a formal inquiry when the magistrate previously refused bail in terms
of section 61 of the Criminal Procedure Act, 51 of 1977. The
magistrate found that only the facts mentioned in (i) and (ii)
(supra)
were
new facts and gave appellant leave to renew his application for bail
on these alleged facts. After hearing evidence and argument the
magistrate on 12 October 2009 refused bail, whereafter the appellant
launched this appeal on no less than fourteen grounds.









[4]
The magistrate prepared a written judgment in which she summarizes
the evidence presented. The judgment also contains some reasoning,
but ends rather abruptly. Although the transcribed record is not
clear, it appears that this judgment was read out in court. The final
decision, namely whether the application was granted or refused does
not appear clearly from the record. However, it is common cause
between the parties that bail was indeed refused.









[5]
I must confess that I have great difficulty in following the
magistrate's judgment and to make sense of parts of the reasoning to
discern what the actual grounds were on which bail was refused. My
difficulty stems from the manner in which the magistrate expresses
herself. The problem could also have arisen because she perhaps did
not edit or proof read the written judgment. Furthermore, she did not
initially provide additional reasons in response to the notice of
appeal. When the appeal came before us on a previous occasion, we
ordered that the magistrate provides reasons on the grounds raised in
the notice of appeal. These reasons suffer from the same defects as
the judgment. In addition, some of the answers do not in substance
address the grounds of appeal and are unhelpful.









[6]
I think it is necessary to stress the importance of a magistrate's
duty to provide reasons when a matter goes on appeal. The
magistrate's reasons are, if properly done, of great assistance to
the court of appeal, which cannot be expected to adjudicate the
appeal without the benefit of the magistrate's findings on fact and
law and the accompanying reasoning. That is why rule 67(3) of the
magistrates' courts places a duty on the clerk of the court to place
a copy of the case record and notice of appeal before the presiding
magistrate who shall within 14 days thereafter furnish to the clerk
of the court a statement in writing showing -















(i) the
facts he or she found to be proved;



(ii) his
or her reason for any finding of fact specified in the
appellant's
notice as appealed against; and



(iii) his
or her reasons for any ruling on any question of law or as to
the
admission or rejection of evidence so specified as appealed
against.









[7]
Rule 67(4) places a further duty on the clerk of the court who "shall
upon receipt of the judicial officers statement forthwith inform the
person who noted the appeal that the statement has been furnished".
There is no indication in the record before us that these steps were
ever taken. The importance of the magistrate's reasons are emphasised
by the fact that he or she is required to furnish amended reasons
should the accused amend his/her notice of appeal. This is provided
for in rule 67(5), which states:











"(5)
Within 14 days after the person who noted the appeal has been so
informed, the appellant may by notice to the clerk of the court,
amend his notice of appeal and the judicial officer may, in his
discretion, within 7 days thereafter furnish the clerk of the court a
further or amended statement of his findings of facts and reasons for
judgment."



[8]
The matter has been dealt with in at least two reported judgments of
this Court. In
S
v Tases
2003
NR 96 HC F
RANK,
J
stated the following at 103G-H:



"In
terms of the Magistrates' Courts Rules, Rule 67(3) a magistrate is
obliged to furnish such reasons. Only where he had given an
ex
tempore
judgment
in which the matters raised in the notice of appeal have been dealt
with may he/she decline to furnish further reasons. Even in such a
case the magistrate must respond to the notice of appeal by
indicating that he/she has nothing to add to the original judgment (S
v
Vogel
1979
(3) SA 822 (N) and
Williams
v Eerste Addisionele Landdros, Bloemfontein
1967
(4) SA 61









[9]
In S
v
Kakololo
2004
NR 7 HC M
ARITZ
J
(as he then was), dealing with the issue of a valid notice of appeal,
stated the following (at 8F-G):










"[The
notice of appeal] ... serves to inform the trial magistrate in clear
and specific terms, what the grounds are on which the appeal is being
brought and whether they relate to issues of law or fact or both.
It
is with reference to the grounds of appeal specifically relied on
that the magistrate is required to frame his or her reasons under the
Magistrate's Courts Rule 67(3)
."
[my underlining]









[10]
He continued (at 10A-B):










" [T]he
scheme envisaged in Rule 67 is designed to facilitate the fair



and
expeditious adjudication of appeals.
It
contemplates, for example, that the court of appeal will have the
benefit of the magistrate's reasons specifically addressing the
grounds of appeal

given at a time when the proceedings are still relatively fresh in
his or her mind." [my underlining]



[11]
In the South African case of S
v
M
1978
(1) SA 571 (NPD), the Court dealt with the problems encountered when
ex
tempore
judgments
do not deal at all or only obliquely with the points raised in the
grounds of appeal and where the magistrate does not address these
points squarely when giving reasons and stated (at 572D):










"It
makes it extremely difficult for a Court of appeal to do justice to
both the appellant and to the State if it is obliged to come to a
conclusion without the assistance to which it is entitled from a
magistrate, and which a magistrate is obliged to give."






[12]
The Court in
M's
case
also quoted with approval and emphasised (at 573A) the following
statement in the report of the judgment in
Masini
v Smith
in
35
SALJ
491,
namely that the magistrate, when providing reasons
"....must
moreover satisfy the Court that he has brought an intelligent and
judicial consideration to bear on all the salient and essential
features of the case."









[13]
I respectfully agree entirely with the views expressed in the
abovementioned authorities.









[14]
What, I think, can be gleaned from the judgment and additional
reasons, is that the magistrate came to the conclusion,
inter
alia,
that
the explanation for the delay in completing the investigation is
reasonable; and that there are stronger reasons than during the first
application to believe that the State has a strong
prima
facie
case
against the appellant. The final statement in her judgment reads as
follows (the quotation is
verbatim):










"Of
course the 2
nd
point that is of decreased of abscondment it is obvious that the
Court previous ruled the accused be kept in custody and in this
hearing in also the Court ruling in the interest of justice and that
of public administration."












[15]
Counsel before us were in agreement that the magistrate probably
means to say in the last few words that she is denying bail, as in
the first application, also in the second application on the basis
that it is in the interests of the public and the administration of
justice. I think this is a fair interpretation. The first part of the
sentence is more difficult - is the magistrate saying that there
obviously is a decreased risk of abscondment because she previously
ordered that the appellant be kept in custody? If so, that would beg
the question of whether the appellant is likely to abscond if
released.









[16]
Ms
Schimming-Chase,
who
appeared on behalf of the appellant both in the lower court and on
appeal, submitted that the judgment should be interpreted to mean
that bail was refused on the grounds of the interest of the public
and of the administration of justice. However, she also prepared
heads of arguments on the basis that the magistrate also refused bail
because the appellant posed a flight risk.



[17]
Ms
Jacobs
who
appeared on behalf of respondent, pointed out that the State in the
court
a
quo
opposed
the granting of bail on the new facts on the basis that there was
still a risk of abscondment. This being so, she submitted that the
magistrate had to make a finding on this aspect and that she did in
fact decide that appellant still posed a risk for certain reasons.
State counsel further submitted that the magistrate in fact found
that these were no new facts persuading her to grant bail and that
she also refused bail on the grounds that it would be in the
interests of the public and the administration of justice.









[18]
Before turning to the merits of the appeal, it is necessary to record
that section 65(4) of the Criminal Procedure Act, 51 0f 1977
expressly provides that the court hearing the appeal shall not set
aside the decision against which the appeal is brought, unless the
court is satisfied that the decision was wrong, in which event the
court shall give the decision which in its opinion the lower court
should have given.









[19]
I now turn to a consideration of the first basis on which the second
bail application was premised. To understand this basis it is
necessary to go back to the first bail application. During that
application, the former investigating officer, W/O Tjivikua testified
that, in addition to the original charge against appellant, he later
received another 27 dockets against appellant, three of which he
received on 23 and 24 December 2008 shortly after the appellant's
arrest. However, the appellant had not yet been formally charged
on these 27 dockets. The additional complaints still had to be
investigated but the indications were that they involved a total
amount of approximately N$1,5 million. Tjivikua further indicated
that he needed certain documentation from the appellant, namely
business registers and second hand goods certificates. Tjivikua
testified that the appellant had informed him that the registers were
in the possession of his wife. According to Tjivikua the speed with
which the investigations would be finalised would,
inter
alia,
depend
on whether appellant would provide the required documentation. He
stated that a team of 3 to 4 investigators had been formed to
investigate the complaints in the 27 dockets and that he estimated
the investigation would be finalised within 3 months. The
investigation team allegedly included W/O Nganyone from the Motor
Vehicle Theft Unit of Nampol.









[20]
On 4 September 2009, the date the second bail application was
launched, the appellant had not yet been formally charged on any of
the additional complaints. By then about 8 months had passed, whereas
Tjivikua's estimation was that the investigation would have been
finalized within 3 months. The fact that the investigation had
ostensibly not been finalized while a period of 8 months had passed,
therefore formed the first basis of the second bail application.









[21]
In the second bail application the State called W/O Nganyone, the new
investigating officer, to testify about the progress of the
investigations.



He
said that he took over from Tjivikua in February 2009, when the
investigation of the cases against the appellant was transferred to
the Motor Vehicle Theft Unit. He received 43 dockets from Tjivikua.
He testified that the only investigation that had been done by then
related to the first docket opened against the appellant. On the
other 43 dockets no investigation had been done by February 2009.
Later he received 3 more dockets against the appellant. Thereafter
some complaints were withdrawn, bringing the total number of dockets
against the appellant to 36. The gist of the complaints against the
appellant is that the complainants handed their motor vehicles over
to the appellant to sell them by auction. He allegedly sold the
vehicles but failed to pay the proceeds to the complainants. Two of
the cases involved goods other than motor vehicles. As many of the
vehicles involved had been sold to other second hand car dealers who
in time sold them to other customers, he had to spend time tracing
all the vehicles. This meant that he had to travel all over the
country to trace the vehicles and to obtain statements from all the
persons involved. In addition he had 140 other unrelated dockets on
hand to investigate, which meant that he could not devote all his
attention to the cases against the appellant. This meant that the
investigations were delayed and took about 8 months to complete as
opposed to 3 months. While the bail proceedings in the court
a
quo
were
pending, Nganyone formally charged the appellant with 36 additional
counts, bringing the total number of counts of theft by false
pretences against appellant to 37. The total value of the alleged
thefts is N$1.9 million. He was of the view that all the
investigation was finalized, but when after he handed over the
dockets to the Deputy Prosecutor General, he received instruction to
have certain handwriting analysis done to prove the signature of the
accused on certain documents. All indications by Dr Ludik of the
National Forensic Science Laboratory were that the analyses would be






finalized
by 12 October 2009.









[22]
Nganyone was of the view that, taking into consideration the number
of cases and the nature of the investigation, the time he took to
complete the investigation was not long. The magistrate agreed with
him, because she held that the investigation was completed within a
reasonable time bearing in mind that he was singly handling it.









[23]
Appellant's counsel submitted that the magistrate erred in several
respects by ultimately dismissing the first new ground on which the
second bail application is premised. The first error the magistrate
allegedly made was to rule during the course of the bail proceedings
"that the investigating officer was not compelled to testify or
to answer questions on the contents of the dockets containing the
charges against the appellant to
inter
alia
establish
whether the investigations of the charges laid against him were in
actual fact finalised and with regard to the strength of the State's
case against the accused" (see paragraph 1 of the Notice of
Appeal). This in turn, led to a second error, it was submitted,
namely that the magistrate relied on and took into account the
unsubstantiated
ipse
dixit
evidence
of the investigating officer, in particular with regard to the
finalisation of the investigation, the risk of abscondment, the
strength of the State's case and the public interest in the appellant
being refused bail (see paragraph 7 of the Notice of Appeal).









[24]
As I stated before, while the bail proceedings were pending accused
was charged in a separate court on the additional 36 charges.
Nganyone made the allegation that the investigation had been
finalized, except that the control prosecutor the previous day had
given instruction that certain handwriting analysis had to be done to
prove the accused's signature. Counsel for appellant wanted to cross
examine Nganyone on the issue of whether the investigation had indeed
been finalised and concerning his testimony that the State had a
strong
prima
facie
case
against the appellant. In cross examination the defence put it to
Nganyone that the investigations had indeed still not been completed
and sought to establish this fact. However, Nganyone could not
remember certain dates and other relevant acts in relation to the
investigation. Initially he agreed to bring the police dockets to
court so that he could refresh his memory on these matters, but
subsequently the prosecution declined to make the dockets available
to the witness. This led to an application by the defence that the
dockets be handed to Nganyone so that he would be in a position to
refresh his memory. The defence made it clear that it was not seeking
access to the dockets or copies thereof. Defence counsel only wanted
the investigating officer to extract some information from the
dockets where necessary. In support of the application the defence
relied on the South African case of


Nieuwoudt
en Andere v Prokureur-Generaal van die Oos-Kaap
1996
(3) BCLR






340
(SE).









[25]
The State opposed to the application and the matter was argued. The
prosecutor distinguished the
Nieuwoudt
case
on a number of grounds and submitted that the defence was not
entitled to disclosure at the bail application stage.









[26]
The magistrate delivered a ruling with reasons, which was not
transcribed in full, as the recording was indistinct in several
places. This Court ordered the magistrate on a previous occasion to
reconstruct this part of the record, which she did. With due respect
to the magistrate, the reconstruction is not a model of clarity. From
what I am able to make out, it seems that the magistrate understood
what the defence wanted, but she was of the view that, if the police
officer has the dockets in court and is asked questions related to
the contents, this will (i) lead to disclosure of the contents, which
the State was not required to make; and (ii) prejudice the
investigation, which was still incomplete.









[27]
In my view the magistrate erred in both respects. Firstly, the mere
fact that the dockets are made available and even if questions are
asked thereon, would not necessarily lead to the disclosure of the
contents in a way impinging on the rights of the State. Secondly, she
erred by finding that Nganyone regarded the investigation as
incomplete, which he clearly did not.



Thirdly,
the magistrate relied on an extract from a case quoted in the
Nieuwoudt
matter
(at p344), which is to the effect that where an investigating officer
is still gathering information the premature disclosure of his hand
by granting access to information in the docket would not only alert
the suspect to the progress on the investigation, but may well close
off other sources of inquiry. Clearly Nganyone was already past this
stage of the investigation, which was by then already about 11 months
old. What should also not be forgotten is that it is common cause
that the appellant had agreed with the complainants to sell the
vehicles or other goods which were delivered to him for that purpose;
that he sold these items and that he failed to pay the proceeds over
to the complainants, but used the proceeds to cover the expenses of
his business. Appellant was in fact trying to obtain bail so that he
could work to earn an income to repay the complainants what he owes
them. The only issue expressly put into dispute during the bail
proceedings was the value of some of the items sold. By this I do not
mean to say that there may not be other aspects in dispute, e.g.
intention. A further issue that arises is what it was that was
actually stolen, as the charge sheets forming part of the appeal
record are confusing. Was it the goods or the money that was stolen?
In all the circumstances I can hardly imagine that the investigator
was holding his cards close to his chest, so to speak.









[28]
By clear implication the magistrate ruled that the dockets need not
be made available. She ruled that Nganyone must, however, answer
questions posed to him during cross examination as he is the
investigating officer and "the one who knows about the case and
should be able to answers
(sic)
them
relating to the investigation of the case." In her additional
reasons she states: "The court ruling was that the investigating
officer required
(sic)
to
answer to questions post
(sic)
to
him, hence he is the investigating officer." I suppose by using
the word "hence" she means to say "because". The
irony is that the defence's application was sparked precisely because
Nganyone could not answer the questions posed to him, as he had, not
surprisingly, forgotten some details contained in the dockets. The
magistrate's ruling, therefore, effectively placed the matter back at
square one.









[29]
I agree with the submission made on behalf of the appellant, and
reflected in the first ground of appeal, that magistrate erred by, in
effect, ruling that the investigating officer was not compelled to
testify or to answer questions on the contents of the dockets
containing the charges against the appellant to
inter
alia
establish
whether the investigation was in actual fact finalised. In my view
the magistrate should at least have ordered the prosecution to have
the dockets available. Thereafter the matter should have been dealt
with on a question by question basis, depending on the question posed
and whether it required a response entailing disclosure of privileged
information or not.









[30]
It is trite that not every misdirection has an impact on the
proceedings which avails an appellant's case on appeal. However, in
my view the ruling of the magistrate placed an unwarranted damper on
the future conduct of the defence in its cross examination and
prejudiced the appellant by closing off an avenue by means of which
he may have been able to establish the facts he needed to lay a basis
for the first premise on which he launched the second bail
application. Therefore the matter must be approached on the basis
that the appellant would have been able to show that the
investigation was still not complete. Defence counsel also indicated
during her application to have the dockets available that she
intended posing questions to Nganyone about the alleged strength of
the State case. I think it must be assumed in favour of the appellant
that the magistrate's ruling also caused some prejudice in relation
to this aspect of the appellant's case.









[31]
The eleventh ground of appeal is that the magistrate erred in law
and/or fact by taking into account the provisions of section 61 of
the Criminal Procdure Act, 51 of 1977, in refusing bail, without a
proper enquiry being held on this issue, without the appellant being
cross-examined on this issue, and without the State placing such
ground on record at the outset of the bail application. It is indeed
so that the State initially opposed the second bail application only
on the basis that there was a risk that he would abscond. It is on
this basis that the appellant went into the witness box and on this
basis that he was cross examined. Only during the examination in
chief of the investigating officer did he express the view that it is
in the interest of justice that the appellant "is remanded in
custody and that he stands his trial rather than being outside."
The magistrate gave no indication that she was conducting an
enquiry as contemplated by section 61 of the Criminal Procedure Act.
As I stated above, a fair interpretation of the magistrates' judgment
is that the appellant was indeed refused bail on the basis that it
would be against the interests of the public and the administration
of justice. I agree with the submission made on behalf of the
appellant that he was prejudiced by the belated raising of this
matter without proper notice and clear indication of the case he was
required to meet.









[32]
What further concerns me in relation to this issue is that the
magistrate did not give reasons why she was refusing bail in terms of
section 61 of the Criminal Procedure Act. All she stated was that, as
in the first application, she was also refusing bail on the same
grounds in the second application. In her main judgment the
magistrate gave no reasons for this decision. In her additional
reasons she did not deal with this ground of appeal but referred the
court and the parties to her judgment as fully covering this aspect.
In my view the fact that she gave no reasons leaves the matter open
to the Court of Appeal to consider the matter on its own grounds.









[33]
In the alternative, even if I am wrong and I should accept State
counsel's submission that the magistrate in fact concluded on the
same grounds as during the first application that bail should be
refused in the interest of the public and of the administration of
justice, it means that the magistrate relied on the fact that (i) had
evaded arrest; and (ii) the investigation was incomplete. As to (ii),
clearly the investigation was complete except for the handwriting
analysis, as was accepted by the magistrate in her final judgment.
Appellant could hardly interfere with the remaining forensic
investigation, except by refusing to give a specimen or by altering
his handwriting. A refusal seems unlikely in view of all the negative
implications of such conduct. Altering his handwriting can be done in
or out of custody. No questions were posed to the appellant during
cross examination to even suggest that he is likely to interfere with
the remaining forensic investigation. Furthermore, the investigating
officer made no allegation that the appellant would be likely to
interfere with the further investigation. Surprisingly, further,
Nganyone was not interested at all in the appellant's registers and
other documentation in spite of the fact that in words of Ms Barry
(State counsel during the appeal on the first bail application), this
evidence was of "paramount importance" (see para [9] of the
judgment in that matter). The police did not at any stage seize these
items as they would clearly have been entitled to do in terms of the
Criminal Procedure Act. On the State's case in the second application
the registers and documentation are not important. I do not think the
appellant should be further blamed for not offering to hand over the
documentation as he was during the appeal on the first bail
application (see para [9] of the judgment in that matter.)



[34]
As to (i)
(supra),
this
Court recorded in the first bail appeal judgment that the arresting
officer merely assumed that it was indeed the case and left the point
open whether in fact the appellant had in fact evaded arrest by
booking into the guest house. I think it is probable on the common
cause facts that the appellant was not attempting to flee from
Namibia when he booked into the guest house. He had no packed
suitcase, no money, no valid passport, no cell phone, no ticket
booked of any kind to another country. Even if it could be said that
he then may have tried to evade arrest as he knew that the police
were looking for him, it seems unlikely that he would have succeeded
in doing so for long, as it indeed turned out. As it is, his wife
accompanied the police to the place where he was staying. It is not
contested that appellant already knew since about 3 December 2008
that the police were making enquiries about the matter, yet he did
not hide, until shortly before 19 December 2009 when he was arrested
at the guest house. In my view the fact that the appellant possibly
deliberately sought to evade arrest at that stage should not have
played a significant role at the stage that the second bail
application was heard. Although such a fact, if established, would
remain relevant, it would have to be considered together with all the
other evidence presented at the second stage. Bearing in mind that
the magistrate did not provide any new reasons for refusing bail on
the basis of section 61, it seems to me that the refusal during the
second bail application on the basis of him evading arrest at a much
earlier stage is on thin ground.


[35]
I am further of the view that there is merit in the 14
th
ground of appeal, namely that the magistrate erred by failing to
consider the imposition of any bail conditions. There is no
indication whatsoever that the imposition of conditions was
considered in any way. In my view the circumstances of this case are
not such that the refusal of bail is so self-evident that conditions
need not even be considered.









[36]
Having come to this conclusion, together with the other material
misdirections I have already found in regard to the first and 11
th
ground of appeal, I think that this Court is at large to consider the
issue of bail afresh. There is no need to deal with the remaining
grounds of appeal.









[37]
The appellant testified that since he was last refused bail he has
lost his house, his car and his business. His wife has regrettably
also passed away in the interim. The accused expressed his intention
to stand trial. Although it is trite that the mere say so of an
accused on a matter such as this is not worth much, I think there are
some facts which are in his favour. He has no valid passport and
there is no evidence that he has applied for one. Although this fact
is certainly in itself not conclusive, there is the additional
evidence that he has been offered employment at Cobra Cooling by an
old friend of 25 years, who also testified to this effect. Mr Brown
has a business in Windhoek since 2002 doing vehicle air conditioning
repairs and the installation of alarms and other electronic devices.
He is willing to employ the accused in an administrative capacity to
help him to get back on his feet again. Although his goodwill was
questioned by the prosecution in the court
a
quo
and
labelled as a scheme to get the appellant released on bail, I have a
favourable impression, albeit from the written record, of Mr Brown
and the way in which he has stepped up to assist and support the
appellant. He seems to be sincere, also because, as I understand it,
he is willing to put up the money for the appellant's bail. The
accused still has several of his family members residing in Namibia,
and at the time of the second bail application his mother-in-law was
willing to provide him with accommodation. It was suggested by the
prosecution
a
quo
that
the appellant, having lost his house, business and wife, had nothing
further to lose by absconding from Namibia and not standing his
trial. However, it seems to me that his family and friends are
supporting him in a way that makes it improbable that he would abuse
the laws of the country by fleeing. In my view it is also not so easy
for a person with his name and race to unlawfully cross the borders
into other African countries, even into South Africa, and to remain
there undetected as a fugitive. The chances that he may disappear
into some other country appear to be remote. I think that if bail in
a high amount is granted subject to strict conditions, this would
serve the purpose of balancing the concerns of the State with the
interests of the appellant.









[38]
While stating this I bear in mind that Ms
Jacobs
impressed
on us the seriousness of the crimes with which the appellant is
charged so far. In this regard I assume that the involvement of the
Office of the Prosecutor-General will lead to more sensible charges
being drawn than those already framed in the magistrate's court. I
agree that it is serious if the appellant is suspected of repeatedly
stealing from or defrauding innocent members of the public by
convincing or allowing them to entrust their hard earned goods to him
to be sold in the
bona
fide
expectation
to be paid the proceeds of sale in due course, while he knew that he
would not be doing so at all or at the agreed time, or if he
unlawfully misappropriated the proceeds of the sales. I can
understand that such complainants may suffer much hardship in that
they have not received what they were entitled to, plus being without
the asset sold and probably having to go to the expense of buying
another in its place without the expected income from the sale of the
asset entrusted to the appellant. It probably is difficult for a
complainant to see a person accused of having done such deeds walking
the streets and continuing with his life. However, I think they
should also realize that this so-called freedom comes at a price and
that bail should not be refused in order to punish an accused who has
not yet been convicted. In this case the chance that the accused is a
danger to the public in that he might repeat any such alleged acts
appears to be very slim indeed. What also weighs heavily with me is
that it is uncontested that the accused has already repaid several of
the complainants who made civil cases against him and that he is
willing to continue doing so if he is released on bail and able to
work.









[39]
I further take note of the fact that the total amount alleged to be
involved in the charges against he appellant is high in the vicinity
of N$1,9 million. I added up the values of each charge, some of which
have not been specified and some of which are in dispute, to be about
N$1,665 000. This is still a high amount. It is not clear from the
charges framed whether the value alleged is the estimated value of
the goods before sale or whether it is the actual amount which
appellant had to pay the complainant. Bearing in mind the high total
value allegedly involved, I am nevertheless of the view that a high
amount of bail plus stringent conditions are likely to be effective
in the appellant standing his trial and satisfying the demands of
public interest and the administration of justice.









[40]
An indication was given during the hearing before us that the
appellant is able to pay bail of N$50 000. I think this amount is
fair in the circumstances of this case.












[41]
The following order is accordingly made:



1. The
appeal against the refusal of bail is upheld.



2. The
appellant is granted bail in the amount of N$50 000, subject to the
following conditions if the bail money is paid in full:



(a)
that the appellant appears at the next time and date to which the
trial matter in any court has been postponed and remains in
attendance until excused by that court, failing which a warrant may
be issued for his arrest, the bail be cancelled and the bail money be
forfeited to the State;



(b)
that the appellant does not leave the district of Windhoek;



(c)
that the appellant reports once daily between 18h00 and 20h00 at the
Windhoek Police Station;



(d)
that the appellant does not renew or apply for a passport or obtain
temporary or emergency travelling documents from the authorities in
Namibia of any other country.



3.
The
investigating officer shall provide a copy of the identification
document of the appellant with his description and a copy of this
order to all border posts and all official points of exit from
Namibia.
































VAN
NIEKERK, J




















I
agree.


























PARKER,
J





Appearance
for the parties:





For
the appellant: Adv E M Schimming-Chase


At
first instructed by LorentzAngula Inc, later by Theunissen
Louw and Partners





For
the State: Adv H F Jacobs


Office
of the Prosecutor-General