NO.: A 120/2011
THE HIGH COURT OF NAMIBIA
the matter between:
OF SAFETY & SECURITY
COMMISSIONER OF PRISONS
LEARNED MAGISTRATE – MRS R. HERUGA/
on: 14 May 2011
on: 14 June 2011
AJ.:  On 7 January 2011 a certain Mr. Heckmeier was shot
to death in Windhoek. Soon after his body was found and on the same
day members of the Namibian Police including Sergeant Ndokosho and
Sergeant Alfonso visited a certain guest house in Windhoek, where the
applicants occupied a room, ostensibly in connection with the death
of Mr. Heckmeier. During a search of the room occupied by the
applicants the police discovered 22 grams of cannabis.
The applicants were thereafter arrested and detained at the Wanaheda
police station. There is a dispute on the papers as to why the
applicants were arrested. According to the applicants they were
informed upon their arrest that they were being arrested on a charge
of murder. The respondents allege that the applicants were arrested
for the unlawful possession of cannabis. To the extent necessary I
will deal with that dispute in due course.
On 8 January 2011 the applicants were formally charged with the
unlawful possession of cannabis. They appeared on that charge before
the magistrate on 10 January 2011. It is common cause before me that
the appearance before the magistrate took place within a period of 48
hours following their arrest as provided for in section 50 of Act 51
of 1977. Given the fact that the 8th and 9th of
January was a Saturday and Sunday respectively these days must be
excluded from the calculation of the 48 hours period in terms of
section 50 (1)(a) of the Criminal Procedure Act.
The learned magistrate before whom the applicants appeared postponed
the case and ordered the further detention of the applicants until
their next appearance.
Having consulted with their legal representatives and having decided
to plead guilty to the charge of the unlawful possession of cannabis,
the applicants were again brought before the magistrate on 12 January
2011. The applicants thereupon pleaded guilty to the charge and were
convicted and sentenced to pay a fine of N$300-00 or in default of
payment to undergo 3 months imprisonment which fines the applicants
paid on 14 January 2011.
Following their appearance in court on 12 January 2011 the
applicants, accompanied by their legal representatives were taken by
the police to the Bahnhof Street police station where they were
advised by Detective Chief Inspector de Klerk that they were arrested
and charged with various offences relating to the death of Mr.
Heckmeier including his murder. The applicants were formally charged
with these crimes and again appeared before the magistrate on those
charges on 14 January 2011. The learned magistrate postponed the
matter until 7 March 2011 and ordered that the applicants be detained
in custody until then.
Following further appearances before the magistrate the matter was
postponed from time to time and the next date for the appearance of
the applicants before the magistrate is the 8th of July
2011. The applicants remain in custody upon the order of the
Friday the 13th May 2011 at 15h40 the applicants filed an
application with the Registrar of this court. The Notice of Motion
reads as follows:
Applicant’s non-compliance with the Rules of this Honourable
Court with regard to service and filling and that this matter be
dealt with as one of urgency in terms of Rule 6(12) of the Rules of
this Honourable Court.
a Rule Nisi be issued calling upon the Respondents to show cause on
the 10th day of June 2011 at 10h00,
why an order in the following terms should not be issued:
the continued detention of the Applicant after 14 January 2011
Applicant be released from custody and further detention for the
crimes for which he is arrested under CR number 192/01/11 and/or
the Court Order ordering the further detention of the applicant
dated 14 January 2011 delivered by the learned Magistrate Mrs. R.
Herunga in the Windhoek Magistrate’s Court in S v Thomas
Kevin Markus and Another CR No: 192/01/2011 and WHK-CRM 940/2011
null and void.
the Court Order ordering the further detention of the applicant
dated 07 March 2011 and 10 May 2011 delivered by the learned
Magistrate Mrs. R. Herunga in the Windhoek Magistrate’s Court
in S v Thomas Kevin Markus and Another CR No: 192/01/2011 and
WHK-CRM 940/2011 null and void.
the 1st Respondent and/or 2nd Respondent to
release the Applicant from its custody.
prayers 2.1 to 2.4 shall operate as an interim interdict with
immediate effect pending the Return date of the Rule Nisi.
the 1st Respondent bears the costs of this application.
and/or alternative relief.”
application was served on the respondents at 16h27 on the 13th
of May 2011. Mr. Uanivi conceded that in essence the application is
for final relief.
When the matter was called before me at 9h00 on 14 May 2011, Mr.
Uanivi appeared for both the applicants. Mr. Oosthuizen SC assisted
by Mr. Mostert appeared for the respondents. The respondent took
issue with the applicant that the matter ought to dealt with as one
of urgency and further that in any event the application should be
dismissed as being without merit.
I heard argument from counsel for the applicants and for the
respondents on both these issues. I thereafter made the orders which
appear at the end of this judgment and indicated that I will prepare
and deliver my reasons in due course which I now proceed to do.
argument for urgency is tenuous indeed. The only submission made by
Mr. Uanivi is that the applicants were deprived of their liberty and
that fact by itself requires that the application should be heard as
one of urgency. That does not mean, however that an application can
be brought as one of urgency some five months after the applicants
were arrested. As I will indicate when I deal with the issue of costs
much of the delay in bringing the application was caused by Mr.
Uanivi: I nevertheless made an order condoning the non-compliance
with the Rules of the Court as an exercise of the discretion I have.
As I indicated I heard argument on the merits of the application, and
given the history of the matter it was my view that the matter must
be brought to finality.
merits of the application:
The foundation upon which Mr. Uanivi based his argument is the fact
that according to the applicants they were arrested on a charge of
murder on 7 January 2011. Therefore, so the argument went the
applicants should have been brought before a magistrate on that
charge within 48 hours. The failure on the part of the State to do so
renders the detention of the applicants unlawful from the outset.
Once the continued detention on the charge upon which they were
arrested became unlawful, the applicant’s were entitled to
their release, regardless of whether or not they were subsequently
brought before a magistrate, it was submitted.
The submission is over-simplified and at odds with the facts. In this
case it is common cause that upon their arrest upon whatever charge,
the applicants were found to have been in unlawful possession of
cannabis. They were subsequently charged with that offence and
brought before a magistrate who ordered their further detention. The
fact that they were not also charged with murder at that time does
not render their detention consequent upon the cannabis charge
unlawful. Upon a proper reading of Section 50 of Act 51 of 1977 it is
abundantly clear that the requirement is not that the applicants must
be charged and brought before a magistrate on the exact charge for
which they were arrested. All that the section requires is that the
person, once arrested must be brought to court “on any charge”.
It goes without saying that the charge preferred must arise from
pre-existing facts, as was the case here. It follows that the
detention of the applicants were lawful.
Having come to that conclusion it is not necessary to deal with the
factual dispute whether or not the applicants were arrested on a
charge of murder or for the unlawful possession of cannabis.
The award of costs are de bonis propriis, although on
the discretion of the Court, is nonetheless guided by principles. In
Vermaak’s Executor v Vermaak’s Heirs 1909
675 679 Innes CJ at p. 691 summed up the position as follows.
whole question was carefully considered by this court in Potgieter
Case (1908 TS 982) and
a general rule was formulated to the effect that in order to justify
a personal order for costs against a litigant occupying a fiduciary
position his conduct in connection with the litigation in question
must have been mala
negligent or unreasonable”. This dictum was consistently
accepted in several judgments thereafter and I adopt it as a correct
statement of the law.
The same considerations must apply in relation to legal
practitioners. There are additional considerations as well. Legal
practitioners are officers of the court and in fulfilling their
functions in that capacity they must likewise not conduct themselves
in a manner which is mala fide negligent or unreasonable.
Furthermore by accepting a brief from a client, a legal practitioner
becomes obliged to conduct the case for his client with the skill,
diligence and care that the circumstances of the case require.
Against the backdrop of these considerations I was of the view,
mindful of the fact that cost orders de bonis propriis are not
be granted lightly, that the conduct of the applicants legal
practitioner warranted censure. To that end a brief summary of the
course this application took is necessary.
On 7 March 2011, Mr. Uanivi who was then representing the first
applicant in these proceedings informed the magistrate that a pending
bail application was not proceeded with. Instead an urgent
application for the release of the accused was to be brought in this
Court. Nothing further was done to pursue that application however
until the 7th April 2011 when the matter was enrolled
before me as an urgent application to be heard the next day. The only
reason for this inordinate delay was that Mr. Uanivi was engaged in
other matters and could not attend to this matter.
Having enrolled the matter for 8 April an application to remove the
case from the roll was filed shortly before the matter was to be
This was because Mr. Uanivi became ill. I would have been inclined to
grant a postponement to enable Mr. Uanivi to recover from his illness
had that been asked for. I was advised, however by Mr. Haifidi who
appeared for the applicant, in the place of Mr. Uanivi that the
instructions received from the applicant was that he wished to have
the application removed from the roll. It transpired however that a
postponement was not asked for because once again Mr. Uanivi’s
diary was full.
I ordered that the application be struck from the roll and ordered
the applicant to pay the costs of the application.
There the matter remained until the afternoon of Friday the 13th
of May 2011. At 15h40 on that afternoon the present application was
filed with the Registrar to be heard on Saturday the 14th
of May 2011 at 9h00. I was told by Mr. Uanivi that the reason for
this was essentially that any other day did not fit his diary. Once
more his other commitments prevented him from attending to the matter
prior to 13 May 2011.
Such conduct is grossly negligent and irresponsible. Not only did Mr.
Uanivi fail to act in the best interest of his clients, but he abused
the process of this Court. I wish to emphasize that the court should
not be required to sit over weekends solely for the reason that a
legal practitioner is otherwise too busy during the week. Such
conduct is in my view is irresponsible and disrespectful.
I consequently made the following orders:
the applicant’s non-compliance with the Rules of this
Honourable Court with regard to service and filling is condoned and
that this matter be dealt with as one of urgency in terms of Rule
6(12) of the Rules of this Honourable Court.
the application is dismissed.
the Respondents are awarded costs of this application.
the costs are to be paid de bonis proriis by the legal
practitioner of the applicant.
BEHALF OF THE APPLICANT: Mr. Uanivi
BY: Nambahu & Uanivi Attorneys
BEHALF OF THE RESPONDENTS: Mr. Oosthuizen
BY: Government Attorneys