Court name
High Court
Case number
5 of 2011

S v Khoaseb (5 of 2011) [2012] NAHC 78 (09 March 2012);

Media neutral citation
[2012] NAHC 78
Shivute J

CASE NO.: CC 05/2011


In the matter between:






Heard on: 2012 February 22-23

Delivered on: 2012 March 09



J: [1] The Applicant, as second accused, had been
jointly charged with two others and arraigned in this Court on five
charges, namely:

One count of
murder; a count of attempted murder, alternatively contravening
section 38(1) read with sections 1, 10, 38 and 39 of the Arms and
Ammunition Act 7 of 1996 (negligent discharge or handling of an arm);
robbery with aggravating circumstances as defined in section 1 of the
Criminal Procedure Act 51 of 1977; contravening section 2 read with
sections 1, 8, 10, 38 and 39 of the Arms and Ammunition Act
(possession of firearms without a licence) and contravening section
33 read with sections 1, 8, 10, 38 and 39 of the Arms and Ammunition
Act (possession of ammunition).

[2] Only the
applicant and the 3rd accused person are in custody. The
1st accused, Paulus Mwengo, has escaped from custody.

[3] In these
proceedings, the Applicant is represented by Mr Wessels instructed by
the Directorate of Legal Aid whilst the respondent is represented by
Ms Verhoef.

[4] It has been
established that the Applicant is a 45 year old Namibian born at
Otjimbingwe. He is unemployed. Both his parents are deceased. He has
four siblings who are all residing in Namibia. He is married with six
children. Two are employed, three are unemployed and the last born is
still in school. The applicant attended school up to standard 2 and
left school because his parents could not afford to pay for his
school fees. He went to work on several farms. At the time he was
arrested he was unemployed. His wife is also unemployed.

[5] The Applicant
has no passport and he has never been outside Namibia. He was staying
at a place called Single Quarters in Karibib with his family prior to
his incarceration. He has been in custody for about two and half
years. He has a previous conviction. He was convicted as an accessory
after the fact to housebreaking with intent to steal and theft. He
was convicted together with one of his co-accused persons. Apart from
the previous conviction he has two other cases pending in Karibib
Magistrate Court, namely:

Housebreaking with
intent to steal and theft and another case of theft read with the
provisions of the Stock Theft Act. The Applicant indicated that he
can only afford to pay bail in the amount between N$800.00 and
N$1000.00. He has no source of income. If granted bail he would ask
one of his children who is employed to pay bail for him.

[6] The Applicant
maintained that he would plead not guilty to all the charges as he
did not know the place where the offences were allegedly committed.
He further stated that he was in custody when these offences were
committed. According to him he was arrested on 03 November 2009 and
these offences were committed on 07 November 2009. It was further the
applicant’s testimony that should he be granted bail he would
attend his trial.

[7] The
State opposed bail on the grounds that the offences the Applicant is
charged with are very serious; the State has a
case against the Applicant; the
Applicant may abscond should he be released on bail,
that it is not in the interests of justice or public to release the
Applicant on bail.

[8] The State
adduced evidence to the effect that a balaclava which was alleged to
have been worn by one of the persons who committed the offences was
allegedly found covered with grass at the Applicant’s house.
Light green overalls and safety boots were also found at the
Applicant’s place. The overalls and the boots were allegedly
also worn by the culprits during the commission of these offences.
Apart from the above mentioned items, there were other items
allegedly recovered at the Applicant’s place. Those items, the
balaclava, light green overalls and safety boots were allegedly
stolen during the housebreaking with intent to steal and theft in the
matter which is pending in the Karibib Magistrate’s Court.
These goods are said to belong to a son of the deceased in the murder
case who is staying at a farm neighboring the Riksberg farm where the
murder and events forming the subject matter of the other counts
allegedly occurred.

[9] The State
further adduced evidence that the Applicant was not arrested whilst
he was in custody on 03 November 2009 as he is alleging. He was
arrested on 12 November 2009 and he was present when the goods were
allegedly recovered from his house. The Sate alleged that the
Applicant acted with a common purpose with the 3rd accused
and the 1st accused who, as mentioned before, is still at
large. There is information that the 1st accused is still
within the boundaries of Namibia and he is expected to be arrested

[10] When
considering an application for bail, the Court should strike a
balance between two competing interests being the liberty of the
Applicant and the State’s requirement that the Applicant stands
his trial and the administration of justice or interest of society be
safeguarded from frustration. The Court should also consider the
notion that the accused is presumed to be innocent until he is proven
guilty. However, as a general proposition, although the presumption
of innocence operates in favour of an accused despite a strong case
against the accused, this should not be over emphasized. The ends of
justice would not be served if there are indications that should the
accused be granted bail he would not stand his trial. It is trite law
that the onus is upon the Applicant to satisfy the Court on a
balance of probabilities that it would be in the interests of justice
if he is released on bail and that he would stand his trial.

Seriousness of
the offences

[11] There is no
doubt that the Applicant and his co-accused persons are facing very
serious charges. In the event of the Appellant being convicted of the
offences of murder and/or robbery with aggravating circumstances
where a firearm was used, the probability is that the penalty to be
meted out will be a long term of imprisonment without the option of a

case against the Applicant

[12] Counsel for
the Applicant conceded that there is a prima facie case
against the Applicant. However, he argued that the Applicant is
unlikely to be convicted because the State is only relying on
circumstantial evidence. It is trite that a bail application is not a
trial itself. The prosecution does not have to prove beyond a
reasonable doubt that the Applicant is guilty at this stage of the
proceedings. The requirement at this stage is for the prosecution to
show through credible evidence that there is a prima facie
case against the Applicant.

The risk of

[13] The risk of
absconding should be potential and it is guided by the nature of the
charge and the penalties which are likely to be imposed should the
Applicant be convicted; the strength of the State case; whether the
Applicant has the means to leave the country; his past experience to
being released on bail, and the assurance he gave that he will stand
his trial. The Applicant in this matter appears to be a man of straw.
He is unemployed. As previously mentioned, he indicated that if he is
granted bail he would request bail money from one of his children.
The chances of the Applicant leaving the country are very slim.
However, it is a fact that an accused my not fail to stand his or her
trial only if he or she leaves the country. An example is the 1st
accused in this matter that appears to be evading his trial despite
the fact that he is said to be in the country. As previously stated,
the Applicant’s response to the charges against him was to
raise what appears to be an alibi. The allegation that he was in
custody when the offences were allegedly committed was disputed by
the State through the evidence that the offences were committed on 07
November 2009 and he was arrested on 12 November 2009 at his home.

[14] When the
offences are serious and long term of imprisonment is likely to be
imposed should the Applicant be convicted, there is a high inducement
for the Applicant not to stand his trial.

The interest of
justice or public

[15] The Court
must weigh the interest of justice against the right of the accused
to his liberty. The accused person has a previous conviction. He has
two cases pending in the Magistrate Court, at the pain of being
repetitive, namely:

Stock theft and
housebreaking with intent to steal and theft whereby a motor vehicle
was stolen. In this Court he is facing five counts, two of which are
very serious and if convicted, are likely to attract a sentence of
long term of imprisonment. All the offences which the accused person
is charged with and the offence of which he was convicted are said to
have been committed at the farms in Karibib district. Two of those
farms are neighbouring each other. Having applied the proportionality
test of the interest of justice against the deprivation of the
accused’s personal freedom, I have come to the conclusion that
the interests of justice by far outweigh the interests of the
Applicant. Therefore, the interests of justice will be prejudiced if
he is released on bail, because he is likely to commit further
offences and is unlikely to stand his trial.

[16] In the
result, the following order is made:

The application
for bail is refused.



Ms Verhoef

Instructed by:
Office of the Prosecutor-General

Mr Wessels

Instructed by:
Directorate of Legal Aid