Court name
High Court
Case number
18 of 2012
Title

S v Nafuka (18 of 2012) [2012] NAHC 186 (09 July 2012);

Media neutral citation
[2012] NAHC 186
Coram
Liebenberg J
Tommasi J













IN THE HIGH COURT OF NAMIBIA:



NORTHERN LOCAL DIVISION



HELD AT OSHAKATI







CASE NO.: CA 18/2012







In the matter between:











MATIAS NAFUKA
….............................................................................APPELLANT







and







THESTATE
….....................................................................................RESPONDENT











CORAM: LIEBENBERG, J et
TOMMASI, J.







Heard on: 26 June 2012



Delivered on: 26 June 2012



Reasons released: 09 July 2012











APPEAL JUDGMENT















LIEBENBERG,
J.:
[1]
This is an appeal against the refusal of bail by the Magistrate’s
Court, Oshakati. After oral submissions were heard on the 26
th
of June 2012, we
dismissed the appeal, with reasons to follow. These are the reasons.







[2] When the bail
application was brought before the court
a
quo
the
State opposed it on the following grounds: (i) Appellant might commit
a similar offence (rape); (ii) Appellant might interfere with the
police investigation and State witnesses; and (iii) Public interest.
Appellant was legally represented during these proceedings.







[3] It appears from
the record that the indictment had not been drawn by the time the
bail application was heard, as same does not form part of the appeal
record. However, it is common cause that the accused at the time of
the bail hearing was in custody on a charge of rape, read with the
provisions of the Combating of Domestic Violence Act.
1
It is alleged that
appellant, on diverse occasions between 2006 and 2009 raped the ten
year old daughter (the victim) of his partner, Invula Erica (Invula),
with whom he was cohabiting since 2004.







[4] Appellant is a
police officer with sixteen years’ service, attached to the
Explosives Unit, and is stationed at Outapi. He gave evidence in
support of the bail application and said he has seven children of
which three are staying with him in an NHE
2
house, towards
which monthly payments of N$2 900 are being made. Not only his
children, but also his elderly mother and other family members are
dependent on him for financial support. Appellant contended that the
motive behind the charge of rape laid against him derives from an
incident during this year (2012) when he went to Windhoek and was
then called on his phone by his partner, accusing him of impregnating
another girlfriend of his. According to him she would have said that
she
will do something stupid to [him] and [his] girlfriend”

and upon his return
he learned that a case of rape was opened against him. He testified
that if admitted to bail, he would not interfere with the
investigation and will stand his trial. Appellant disputed
allegations put to him in cross-examination that he threatened and
assaulted Invula when she wanted to report the matter to the police
in 2009. He further denied having threatened to kill her and then
himself if she were to make a report to the police.







[5] It is common cause that when the
alleged crimes were committed the victim was staying with her mother
in the appellant’s house. Also, that already in 2009, the
victim reported to her mother that she had been sexually abused by
the appellant on diverse occasions, which she (Invula) then took up
with the appellant. It is not in dispute that the victim was
eventually taken to the hospital for medical examination, though no
medical evidence was adduced as to the outcome of the examination;
besides the testimony of the investigating officer about the victim
having been treated at some stage for a sexually transmitted disease.
According to the appellant the medical report is still with the
doctor who conducted the examination.







[6] Ms Invula testified that she and
the appellant had been cohabiting since 2004 and that one child was
born from this relationship (not the victim). The victim was born in
1996 and is now sixteen years of age. She said that one day in 2009
the victim came from school crying and upon her insistence, she told
her (Imvula) that the appellant had been raping her since 2006; also,
that he had threatened her not to tell her mother. When she
confronted the appellant about these allegations, he denied it. It is
not clear how long thereafter did they go to the hospital, but it
would appear from Invula’s evidence that when the nurse on duty
heard that the alleged rape was not committed the same day, she
showed no interest as they were not assisted, and returned home.







[7] Back home when
they discussed the matter, the appellant became angry and threatened
to kill Invula and her child if she were to report the matter to the
police, or the Women and Child Protection Unit. She said the
appellant has been threatening her ever since. She testified about an
incident in 2009
3
when the appellant
took her from the house into the bush where she was “badly”
(severely) assaulted. He thereafter pushed her into the car and drove
to the police station, saying that she could go and report the
matter. However, before she could enter the police station, he
grabbed her and threw her into the back of his vehicle and drove home
where he continued assaulting her through the night. Further threats
of assault were made if she were to go to the police. She thereafter
left the house and went to stay with family at Oshikuku until the
appellant at some stage arrived. When he threatened to break down the
door of the house, her sister advised her to rather return with the
appellant and to discuss their problems. When appellant promised not
to continue his assaults, she accompanied him home. According to her
the appellant unfortunately did not keep his promise, for she was
again assaulted in 2012, whereafter she fled the house whilst naked.







[8] Ms Invula testified that she never
reported her daughter’s complaint about her being raped by the
appellant to the police as she was afraid that she would be killed;
evinced by the earlier assaults perpetrated on her by the appellant.
She said she had been staying with him for nine years and knows what
he is capable of doing; describing him as a violent person. She was
strongly opposed to appellant being granted bail, regardless of
conditions attached thereto. The victim at present is under police
protection. Ms Invula was further of the view that, if appellant were
admitted to bail, she would then return to her previous home and
require full time protection from the police against the appellant.







[9] She said in cross-examination that
she laid a charge of assault with intent to do grievous bodily harm
against the appellant, though it is not clear when this was. She
disputed having instigated her daughter (the victim) to open a
criminal case against the appellant due to his involvement with
another woman. In fact, she denied having had prior knowledge about
the appellant having impregnated their neighbour.







[10] It is common cause that what led
to criminal charges being laid against the appellant came as a result
of a report made by the victim to a teacher at her school during this
year.







[11] Ms Angala Malakia, a teacher at
John Alfons Pandeni Combined School, testified that she knows the
victim as a learner in that school since 2010. In March 2012 the
victim told her that she was raped by her step-father during the
period 2006 to 2009, and that the matter was never reported to the
police. It was further reported that her mother had taken her for HIV
testing and that she had since developed an infection in her
genitalia; that her step-father took her to a doctor at Outapi from
where she was referred to Oshakati hospital; that they were told to
return after some weeks for the results but that appellant refused to
disclose same to the family. Ms Malakia said that according to the
victim the reason why she came to make the report was because the
victim was afraid that she might also fall pregnant, as her
step-father (appellant) had impregnated a neighbour of theirs. Ms
Malakia thereupon wrote a report to the Special Education Division
which prompted the police investigation. She further said that since
2011 she observed unusual behaviour on the part of the victim in that
she became emotional and had isolated herself and when questioned
about it, she said that there were problems at home, without
explaining what exactly she was referring to.







[12] The investigating officer, Martin
Simpson (rank unknown), testified that he and two of his colleagues
proceeded to the appellant’s house on the morning of 31 March
2012 in order to arrest him on charges of rape. After informing
appellant accordingly, officer Simpson asked him to subject himself
to a body search, which he refused. Appellant stood up and then tried
to force his way into his bedroom, but was overpowered in time, and
had the firearm he was carrying, taken away from him. In his
testimony the appellant did not dispute this incident happening, but
said he merely wanted to fetch something from his room, without
mentioning what that was. The investigating officer was further of
the view that he had a strong case made out against the appellant. He
interviewed a certain Dr Matayaya who confirmed that the victim was
treated during the year 2010 for a sexually transmitted disease
(STD).







[13] The magistrate, in a
comprehensive judgment covering over eight pages, summarised and
considered the evidence presented, and after applying the applicable
law, came to the conclusion that it would not be in the interest of
society or justice to admit the appellant to bail.







[14] In the appellant’s notice
of appeal there are mainly seven grounds on which the appeal is based
of which some grounds are subdivided in a host of additional grounds.
I do not intend dealing with these in any detail as it forms the
basis of the actual grounds set out in the appeal notice. It must be
said that a fair number of the perceived grounds listed in the notice
are not borne out by the evidence adduced, while others are not
relevant in the final analysis of bail. In summary, those grounds
deserving further consideration are the following:




  • The court a quo erred in its
    finding on the facts that the alleged sexual abuse occurred between
    2006 and 2012 (instead of 2009);



  • That there was insufficient evidence
    on which the court could find that the appellant has threatened to
    cause physical harm to the victim’s mother;



  • Facts which support the appellant’s
    evidence were either rejected or ignored by the court i.e. since
    2009 no report was made to the police while the victim and her
    mother continued living together with the appellant; that appellant
    impregnated another lady, which fact is used by the victim’s
    mother to punish the appellant, in that it forms the basis of the
    report made by the victim to her teacher.



  • Undue emphasis was placed on the
    “merits of the case” at the expense of the appellant’s
    personal circumstances;



  • The court’s failure to consider
    imposing bail conditions which, in the circumstances, would have
    been proper;



  • Undue weight accorded to the
    appellant being a suicide risk;



  • The court misdirecting itself by
    giving undue weight to evidence that purports to show that the
    appellant has a propensity to commit violent crimes against the
    victim’s mother “when the Appellant has had no
    opportunity to reply thereto through cross-examination; or the
    court’s mero (sic) enquiry”
    ; and lastly,



  • The refusal of bail constitutes
    ‘pre-emptory punishment’.








[14] Ms Kishi,
who appeared before
us on behalf of the appellant, and Mr
Wamambo,
for
the respondent, filed comprehensive heads of argument and we
appreciate their industry in this regard.







[15] This Court,
sitting as a Court of appeal, is bound by the provisions of s 65 (4)
of the Criminal Procedure Act
4,
not to interfere and set aside the decision of the magistrate in the
court
a
quo “unless such court or judge is satisfied that the decision
was wrong, in which event the court or judge shall give the decision
which in its or his opinion the lower court should have given.”







[16] In S
v Timotheus
5
the Court cited
with approval the
dictum
in
S
v Barber
6
where Hefer, J said
the following:







It
is well known that the powers of this Court are largely limited where
the 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.”







[17] The Court, in
the same vein, said in
S
v Gaseb
7
that the Court of
appeal should not set aside a refusal of bail by the lower court
unless
satisfied that the case was wrongly decided
;
and though the same was said in
S
v Du Plessis and Another
8
it was further held
that the Court is not allowed to take new factors into account. In
this respect I refer to Ms
Kishi’s
submission
that the appellant will lose his employment if he is refused bail.







[18] The court a
quo
in
its judgment correctly appreciated the principle that the court, when
considering a bail application, has to strike a balance between the
interests of society and the liberty of the accused person who, in
terms of the constitution, is innocent until proven guilty.
9
The court was
further alive to the fact that an accused person’s rights in
terms of the constitution are not absolute and that such person may
be deprived of his/her rights through procedures established by law.
Though entitled to apply for bail following an arrest, the accused
has no
right
to be admitted to
bail. Also that the accused bears the onus of proof in bail
applications and must convince the court on a balance of
probabilities that he/she should be admitted to bail. I am unable to
fault the learned magistrate in his understanding and appreciation of
the law relevant to bail; neither in his application of the law to
the facts and circumstances at hand.







[19] In a case as
the present where bail was refused for reasons of it not being in the
interest of justice to grant the appellant bail, regard must be had
to the specific provisions of s 61 of Act 51 of 1977 (as amended)
10
which substituted
the previous section and now reads:



If
an accused who is in custody in respect of any offence referred to in
Part IV of Schedule 2 applies under section 60 to be released on bail
in respect of such offence, the court
may,
notwithstanding that it is satisfied that it is unlikely that the
accused, if released on bail, will abscond or interfere with any
witness for the prosecution or with the police investigation,
refuse
the application for bail if in the opinion of the court
,
after such inquiry as it deems necessary,
it
is in the interest of the public or the administration of justice
that the accused be retained in custody pending his or her trail
.”



(Emphasis provide)







[20] The court a quo had regard
to the victim and her mother being in a domestic relationship with
the accused, and on whom they were dependent. This is an important
factor, particularly where the accused would be entitled to return to
his house if bail were to be granted, thereby coming in direct
contact with State witnesses. More so, where Ms Invula testified
that, in view of previous threats and assaults perpetrated by the
accused, for reasons connected to the laying of charges against him,
she at this stage considers her life to be in danger; especially now
that the matter has been reported. She said from previous experience
she knew what the accused was capable of doing and that police
protection is sought if the accused were to be released.







[21] A factor the court was entitled
to take into account, and in my view was correctly given sufficient
weight, is Ms Invula’s testimony about the assaults committed
by the accused over a protracted period of time; all of which aimed
at discouraging her to lay charges of rape with the police, ever
since the victim made the first report to her in 2009. There can be
no doubt that the accused over this period succeeded in his
endeavours and had it not been that the victim, three years later,
decided to make a second report to her teacher, then nothing would
have come from the first report made to Ms Invula. Appellant’s
complaint about him not having been afforded the opportunity to
‘reply’ thereto has no merit. He was throughout the bail
proceedings in the magistrate’s court legally represented and
the witness was indeed cross-examined on the alleged assaults –
albeit half-heartedly. The reason for this may lie in the witness’
testimony that she laid a charge of assault with intent to do
grievous bodily harm against the accused; the outcome of which
unfortunately was not explored. It can be gleaned from the evidence
of Ms Invula that the only reason why she never came to report the
alleged rape of the victim to the police, is because of the threats
and assaults perpetrated on her.







[22] The witness Invula was not shown
during cross-examination to be untruthful and the seriousness of the
allegations made during her testimony could not simply be ignored. On
the contrary, these are strong pointers showing not only that there
are signs of the appellant being a violent person, but also that he
was obstructing the course of justice. This in my view supports the
contention that the appellant could possibly again interfere, not so
much with the police investigation, but with the State witnesses in
order to jeopardise the trial.







[23] The fact that the accused is a
police officer was considered by the court a factor that could
increase the possibility of interference by the appellant, or to
eliminate himself by committing suicide. This conclusion is based on
evidence about the appellant having refused to be searched by the
arresting officer, and his intention to go into the bedroom while
armed with his service pistol – evidence not disputed by the
appellant and his conduct in this regard neither explained during his
testimony. In the circumstances it cannot be said that the
magistrate’s conclusion is unmeritorious.



[24] In view of the foregoing, I find
appellant’s contention that, failure to report the matter since
2009, and the victim and her mother’s continued lodging with
the appellant supporting his version, surprising. In the light of the
evidence given by Ms Invula, her failure to report her daughter’s
complaint to the police and their continued staying on in his house,
in my view, would rather seem to support her evidence about the
assaults and threats uttered against her. It was not disputed by the
appellant that Ms Invula questioned him in 2009 on the report made to
her by the victim about him having had sexual intercourse with her
child. This led to the victim being medically examined and which the
appellant admitted during his testimony. Thus, it would be misleading
to contend that nothing was done after the victim complained
to her mother already in 2009 – it was indeed not reported to
the police, but this, according to the evidence, was because of the
appellant’s threats and continued assaults perpetrated on the
witness Invula.







[25] The magistrate in his judgment
indeed erred on the facts when he said that the alleged rapes took
place between 2006 and 2012. According to the evidence presented it
was between 2006 and 2009 and not up until this year. This
notwithstanding, I am not persuaded that the misdirection could have
had any significant impact on the conclusion reached by the
magistrate when refusing to admit the appellant to bail. The court
was entitled to take into account that this was not an isolated
incident, but according to the victim’s report, the alleged
rapes were committed over a period of time during which the appellant
successfully quashed the reporting thereof. Thus, there is no merit
in this ground of appeal.







[26] I now turn to consider the
appellant’s contention about the actual reason why the
complaint was laid against him, namely, for him having impregnated
another woman, i.e. his neighbour.







[27] It indeed appears from the
evidence of Ms Malakia (the teacher) that the reason why the victim
decided to make the report to her, was because of the appellant
having impregnated a neighbour and her fear of falling pregnant as
well. In view of evidence that the alleged incidents of rape
purportedly went up to 2009 only, it certainly begs the question how
the victim could still have feared falling pregnant three years
later. Whereas the victim did not give evidence during bail
proceedings, the extent of her evidence has not been disclosed –
neither whether the alleged rapes took place beyond 2009 as may be
inferred from the report made to Ms Malakia. Although the reason why
the victim decided to make a report to her teacher may, on the
evidence presented, appear peculiar, it does not negate evidence to
the effect that a similar complaint was already made in 2009,
unconnected to any subsequent allegations about appellant having
impregnating another lady.







[28] In the present
circumstances I do not believe that during bail proceedings the
reason
why
the complaint was
made should be given more weight than the actual making of the second
complaint by the victim. Appellant’s legal representative in
the court
a
quo,
through
the investigating officer, placed before the court his opinion, that
on the statements he was of the view that the appellant was guilty of
the offence. Although the court remains the final arbiter on the
question of whether bail is to be granted or not, the opinion of the
investigating officer on questions as to whether the person seeking
bail will stand his trial, or is likely to interfere with the
investigation, should carry some weight.
11
It seems to me that
by saying that the appellant, according to the witness statements and
through the investigation is considered to be guilty of the offence,
means that the State has a strong case against the appellant –
a conclusion reached by the investigating officer and a factor the
court had to give due consideration to when deciding whether or not
to admit appellant to bail.







[29] The court in the exercise of its
discretion has to consider all the relevant facts and circumstances
placed before it before coming to the conclusion that the release of
the accused will not jeopardise the interests of justice. It is clear
from the judgment that all circumstances were duly considered by the
court a quo and despite having found that the appellant has
satisfied ‘all requirements’ for bail, it was not
persuaded that the appellant, in a case as the present where the
victim is a minor child, and the setting of the case in an atmosphere
of domestic violence, should be admitted to bail. Specific regard was
had to the interest the public had in cases where the rights of women
and children were disregarded and the need for the courts to protect
same to the maximum. The court was clearly of the view that this was
an instance where the provisions of s 61 had to be invoked, and that
an injustice would be done to admit the appellant to bail; also, that
no meaningful amount of bail or conditions attached thereto would
deter the appellant from giving effect to his earlier threats. Regard
being had to the circumstances of this case, I find myself unable to
fault the magistrate’s reasoning and the conclusion he came to.







[30] For the foregoing reasons, the
appeal was dismissed.



















___________________________



LIEBENBERG, J











I concur.











___________________________



TOMMASI, J











































































































ON BEHALF OF THE APPELLANT Ms F
Kishi







Instructed by: Dr Weder, Kauta &
Hoveka







ON BEHALF OF THE RESPONDENT Mr N M
Wamambo







Instructed by: Office of the
Prosecutor-General







1Act
No 4 of 2003




2National
Housing Enterprise




3The
hand written record reads 2008, which is erroneous because by then
the rape incident had not yet been reported to Ms Invula.




4Act
51 of 1977




51995
NR 109 (HC)




61979
(4) SA 218 (D & CLD)




72007
(1) NR 310 (HC)




81992
NR 74 (HC)




9S
v Acheson,
1991 NR 1 (HC)




10S
3 of the Criminal Procedure Amendment Act, No 5 of 1991.




11See
S v Du Plessis (supra) at 113E-G