Nangaku v Regional Court Magistrate and Others (A 255/2011) [2011] NAHC 306 (14 October 2011);


Full judgment

CASE NO.: A 255/2011


In the matter between:






Heard on: 14 October 2011

Delivered on: 14 October 2011 (Ex Tempore)



MILLER, AJ: The Applicant in this matter approached this Court by way of Notice of Motion, seeking in effect an order correcting and reviewing the decision by the Regional Court Magistrate who is cited as the 1st Respondent; taken on the 7th of September 2011, in terms of which the Applicant's bail was cancelled. The matter was brought as one of urgency and at the outset of the proceedings I made an order condoning the Applicants non- compliance with the rules of the Court and ordered that the matter be heard as one of urgency.

The Applicant is represented before me by Mr Namandje whereas Mr Ncube represents the 1st, 2nd and 3rd Respondents in this matter.

The Application arose in the following way: The Applicant is presently an Accused in a trial pending before the 1st Respondent in the Windhoek Regional Court. He is standing trial on charges of dealing in prohibited dependence producing substances. That trial is still in progress. Following his arrest on those charges, the Applicant was released on bail. It transpired that, prior to the 7th of September 2011, the Applicant was once more arrested on another charge of dealing in dependence producing substances, which trial is also pending. The Applicant is at present in custody in relation to the second charge.

In the proceedings before the Regional Court's Magistrate which forms the subject of this Application, the Applicant was at that stage represented by a legal practitioner, Mr Harmse.

The Applicant appeared before the Regional Magistrate on the 7th of September 2011. From a copy of the proceedings before the Magistrate which was attached to the Applicant’s founding papers, it is apparent that the following transpired: The State requested the 1st Respondent to cancel the bail of the Applicant on the basis that he had committed another offence of a similar nature. The record reflects that Mr Harmse thereupon informed the Court that he had no objection to the bail being cancelled whereupon the 1st Respondent proceeded to issue an order to the effect that the Applicant will be detained in custody and that his bail is cancelled. It is against that decision that these proceedings were brought before me.

The matter is opposed by all 3 of the Respondents. I heard argument on various aspects, but in my view the matter falls within a narrow campus and can be decided on one aspect alone. The Applicant alleges that he was never consulted by his legal practitioner regarding the proposed cancellation of his bail, nor did his legal practitioner discuss the matter with him or take instructions from him in that regard. These allegations stand unchallenged on the papers before me. Neither the Respondent nor Mr Harmse, although the papers were served on him, placed any facts to the contrary before me. I am of the view that the conduct of the Applicant’s legal practitioner Mr Harmse constitutes an irregularity, calling for the review of the Magistrate’s decision. In this regard I quote from the Judgment in State v Majola 1982 (1) SA 125(AD). The passage I quote appears from the Judgment of his Lordship Mr Justice Tollip, and I quote from page 133 where the following is said:

Yet due to a bona fide misunderstanding by Appellant’s counsel of his duty towards his client, Appellant was not afforded the opportunity of discussing, considering and deciding whether or not to testify in its own defence or of terminating the mandate of his Counsel if, contrary to his wishes, the latter insisted that he should not testify. That constituted an irregularity in the proceedings”.

In argument before me, Mr Ncube advanced the argument that it was apparent from the Applicant’s conduct, that he had acquiesced in the decision of Mr Harmse not to oppose the Prosecutor’s Application to have the Applicant’s bail withdrawn. If on the facts it appears that an Accused had acquiesced in a decision taken on his behalf by his legal practitioner, without having consulted the Accused, that Accused cannot later raise the issue that he had not been consulted. This was the position in State v Louw 1990 (3) SA 116 (AD).

In my view the facts in the decision in State v Louw are distinguishable from the facts before me. In Louw’s case, a period of at least a week had transpired during which period neither the Accused nor his Attorney had raised any concerns about the conduct of the counsel. In the instant case it is apparent from the record that the Accused at the first available opportunity, after he was incarcerated, made arrangements to instruct different legal practitioners and to bring this Application.

If I understand Mr Ncube’s argument correct, it is premised on the fact at the time and in Court when the order was made withdrawing the Applicant’s bail, he remained silent. Although there is some merit in the argument I am by no means persuaded that I should construe that as an acquiescence by the Accused in the decision taken by Mr Harmse. It must be borne in mind that he was not consulted prior to the Application being brought. He therefore did not anticipate that it will be brought, nor was he afforded any opportunity to address the Magistrate. It would have come as a complete surprise and a shock to him. In those circumstances, I am not persuaded that his silence at that stage indicates acquiescence.

It follows in my view that due to the irregularity, the decision of the Learned Magistrate should be reviewed and set aside. I have raised with Mr Namandje the fact that in my view the proper order will be not to grant relief in the form prayed in the Notice of Motion, but to grant alternative relief, which meet the circumstances of the case. The order I make is that the decision taken by the 1st Respondent on the 7th of September in terms of which the Applicant’s bail was cancelled is reviewed and set aside. Secondly the matter is referred back to the Regional Magistrate to hear the Application, if the State is persisting with it to have the Applicant’s bail cancelled and to proceed with the matter in terms of this Order.

I turn to the question of costs. Cost orders were sought against all the Respondents. Mr Namandje fairly conceded before me that as far as the 1st Respondent is concerned, no case has been made out for a cost order against him on the basis that there is no indication that the Learned Magistrate, the 1st Respondent acted mala fide in the exercise of his judicial functions. As far as the 3rd Respondent is concerned, no relief was claimed against him and I assume that he had been cited merely because of some interest that he may have in the matter. I am of the view however, that the 2nd Respondent who opposed the Application should be ordered to pay the costs on the basis that costs will follow the results.

In the result, the 2nd Respondent is ordered to pay the costs of the Application on the basis of one instructing counsel.