Court name
Supreme Court
Case name
S v Masake and Others
Media neutral citation
[2011] NASC 9
Judge
Strydom AJA













REPORTABLE



CASE NO.: SA
13(a)/2010



IN THE SUPREME COURT
OF NAMIBIA



In the matter between:



THE STATE
…..............................................................................................
APPELLANT







and


























































JOHN
TIBISO MASAKE



6TH
RESPONDENT



GEORGE
MASIYALETI LISEHO



8TH
RESPONDENT



DAVIS
CHIOMA MAZIU



9TH
RESPONDENT



FRANCIS
BUITIKO PANGALA



10TH
RESPONDENT



ROSTER
MUSHE LUKATO



11TH
RESPONDENT



KISCO
TWAIMANGO SAKUSHEKA



12TH
RESPONDENT



TOBIAS
MUSHWABE KANANGA



13TH
RESPONDENT



FREDERICK
KABODONTWA LUTHEHEZI



14TH
RESPONDENT



ANDREAS
PUO MULUPU



17TH
RESPONDENT



O’BRIEN
SINKOLELA MWANANYAMBE



19TH
RESPONDENT



ALBERT
SEKENI MANGALAZI



22ND
RESPONDENT



CHARLES
MUKENA SAMBOMA



24TH
RESPONDENT








Coram: Strydom
AJA, Mtambanengwe AJA et Langa AJA



Heard on:
25/10/2010



Delivered on:
22/08/2011



___________________________________________________________________



APPEAL JUDGMENT
(REASONS)



LANGA AJA:



[1] On 25 October 2010
after hearing argument, the Court issued the following order:







Matter
struck off the roll. The reasons will follow.”







What follows are the
reasons of the Court.







[2] The State is the
appellant; the respondents, and other accused, are standing trial in
a special High Court in Windhoek in case number CC 32/2001. The
charges range from high treason, sedition, public violence, murder
and/or attempted murder. On 1 March 2010 and after the conclusion of
a combined trial-within-a-trial in which the State tendered
statements made by some of the accused, the Court a quo made a
ruling rejecting the admissibility of the statements. The State
applied for leave to appeal and this was refused in respect of some
statements (the first lot) and granted with regard to others (the
second lot, made by the 12 respondents in this matter). In respect of
the first lot of statements, the State approached the Chief Justice
on petition, a process which culminated in this Court in the matter
of Calvin Liseli Malumo and Others (Case No. P.4/2010) which
was argued in this Court on 08 June 2010. The full judgment (per
Strydom AJA with Maritz JA and Mtambanengwe AJA concurring)
dismissing the petition, was delivered by this Court on 14/09/2010.







[3] The second lot of
statements were made by the 6th, 8th, 9th,
10th, 11th, 12th, 13th,
14th, 17th, 19th, 22nd
and 24th respondents and form the subject matter of this
appeal. The 12 respondents are, respectively, accused 10, 15, 16, 17,
18, 19, 20, 22, 26, 28, 55 and 119. As stated earlier, leave to
appeal was granted to the State by the Court a quo. The appeal
concerns the exclusion of these statements by the Court a quo.
The reason for inadmissibility, as given by the Court a quo,
is that in each case, the magistrate who recorded each statement
failed to inform the accused concerned of his or her entitlement to
apply for legal aid before making the statement.







[4] In granting leave to
appeal to the State in respect of this latter group, the learned
Judge a quo stated as follows:







I am of the
view that only in respect of those statements excluded exclusively on
the constitutional issue (i.e. failure to inform accused persons of
their entitlement to legal aid) is there a reasonable prospect that
another Court may come to a different conclusion...”.







Leave to appeal was
accordingly granted in respect of those accused whose statements fell
into this category, and granted only in respect of the constitutional
issue referred to.







[5] When the matter was
called before us, Mr. D.F. Small assisted by Mr. H.C. January
(instructed by the Prosecutor-General) represented the State, i.e.,
the Appellant. Appearances for the Respondents were as follows: the
6th Respondent was represented by Mr. Samukange; 13th
Respondent by Mr. Kruger; 19th Respondent by Mr. Neves and
22nd Respondent by Mr. Machaka. The following Respondents
appeared in person, namely, numbers 8, 9, 10, 11, 12, 14, 17 and 24.







[6] As in the Malumo
case, the Court informed counsel that it would first of all want to
hear argument on the Appellant’s right to appeal the ruling of
the Court a quo at this stage. The circumstances in Malumo
were as follows: Following a ruling by the Court a quo that
statements made by the accused that the State had tendered in
evidence were not admissible, the State applied for leave to appeal
to the Supreme Court of Namibia in terms of section 316(1) of the
Criminal Procedure Act, Act No. 51 of 1977, (the Act), against the
ruling. The application for leave to appeal was refused by the Court
a quo and the State thereupon petitioned the Chief Justice, in
terms of the provisions of the Act for leave to appeal. When the
petition came up for hearing in this Court, counsel were requested to
address, inter alia, the following questions in their
argument:







(a) Are the
rulings of the Court
a
quo
on
the admissibility of the confessions/statements which are the subject
matter of the petition, final in effect or are they interlocutory in
nature?







(b) Are the rulings of the Court a
quo
which are the subject matter of the petition appealable by
the State in terms of section 316A of the Criminal Procedure Act,
1977 prior to the conclusion of the trial proceedings against the
respective accused persons to whom those rulings relate, and if so,
under what circumstances (if any) should such an appeal be
entertained? Are those circumstances present in this case?”







[7] It was pointed out in
the petition that the learned Judge a quo had refused leave to
appeal because he was not satisfied that the excluded statements had
been made freely and voluntarily; further, that the ruling on the
inadmissibility of the statements was interlocutory in nature and the
learned Judge was further of the view that there was no reasonable
prospect that another Court would come to a different conclusion.
Among other things, the petition itself sought to justify the hearing
of the appeal while the main trial in the High Court still had some
way to go – the so-called piecemeal approach. That the
circumstances were somewhat unusual cannot be doubted. The trial had
been extremely lengthy, already in its 9th year, with some
278 charges against 122 accused persons. The docket indicates that
there were 859 witnesses of which only 346 had thus far given
evidence.







[8] After reviewing the
law and the facts which were largely common cause, the Court came to
the conclusion that the decision of the Court
a
quo
in
Malumo
did not amount to an
“irregularity in the proceedings,” as envisaged in
section 16 of the Supreme Court Act
1.
There was furthermore no
complaint about highhanded or mistaken conduct by the learned Judge
which may have prevented the State from enjoying a full and fair
hearing, nor did the learned Judge commit any fundamental mistake.
There was accordingly nothing meriting the exercise of the Court’s
review jurisdiction in terms of section 16 of Act No.15 of 1990. See
S v
Bushebi
,
1998 NR 239 (SC) at p 241 F. Likewise in this case. No case has been
made out for this Court to exercise its review jurisdiction. The only
difference to the circumstances in
Malumo
is that in this case, the
learned Judge has granted leave to appeal in respect of the
statements in issue. If the conclusions arrived at by the learned
Judge are wrong, either in ruling the statements inadmissible, or in
granting leave to appeal, that is neither here nor there. This does
not constitute an irregularity in the proceedings. In any event,
since the trial is still proceeding in the High Court, the
opportunity still exists for the Judge
a
quo
to
reconsider. This is particularly so as, in terms of the provisions of
section 14 of Act 15 of 1990, no appeal lies against rulings which
are alterable by the Court a
quo
itself. It is not
necessary in this case to explore whether this is equally applicable
to review proceedings; the relevant principles on review have already
been dealt with. I turn now to deal with the question whether, in
this case, this Court should proceed to decide the appeal in respect
of the statements that have been ruled inadmissible.







[9] The statements
concerned in this group are those which, although they have been
disallowed, leave to appeal to the Supreme Court has been granted by
the Court a quo. These are instances where the only ground for
rejecting the statements was the failure of the magistrate who
recorded the statement to properly explain the rights of the accused
in question to apply for legal aid in instances where they could not
afford to appoint legal representatives of their choice. The learned
Judge a quo was of the opinion that the finding made by him
was sufficiently final and unalterable that leave to appeal could be
granted. The trial Court held that once the magistrates who had taken
the statements testified that they had not explained to the accused
the right to apply for legal aid, that was the end of the matter and
leave to appeal was granted.







[10] When counsel, who
had prepared full argument, were invited to argue appealability as a
point in limine, it soon became clear that the only feature
that distinguishes the issues here from the Malumo case was
the fact that leave to appeal had been granted, and the view of the
trial Court that his finding was sufficiently final and unalterable
that leave to appeal should be granted. Counsel for the respondents
however argued that the matter was not appealable because of the
principle against piece-meal appeals, that there were no exceptional
circumstances present in this case to justify such an approach; that
the appeal may prove to be unnecessary after all; and that there is
no final order by the Court a quo. In a case of this length
and complexity, it is perhaps not self evident that nothing will
happen during the remainder of the trial that will change the mind of
the Court a quo on one or other issue. This is particularly so
where, as in this case, potentially scores of witnesses, including
the accused may still give evidence.







[11] Taking everything
into account, in particular the relationship between this case and
the Malumo matter, and the factors taken into account in that
case, I am of the view that the matter has been brought on appeal
prematurely, before the completion of the trial. The matter was
accordingly struck off the roll.











_________________



LANGA AJA











I agree.











________________



STRYDOM AJA











I agree.











_____________________



MTAMBANENGWE AJA























































Counsel on behalf of
the Appellant:


Assisted
By:




Mr. D.F. Small


Mr.
H.C. January



Instructed
By:



Prosecutor-General











Counsel
on behalf of the 6th Respondent:



Mr.
J. Samukange



Counsel
on behalf of the 13th Respondent:



Mr.
H. Kruger



Counsel
on behalf of the 19th Respondent:



Mr.
J. Neves



Counsel
on behalf of the 22nd Respondent:



Mr.
V.C. Kachaka



Instructed
By:



Directorate
of Legal Aid











On
behalf of 8th, 9th, 10th, 11th,
12th, 14th, 17th and 24th
Respondents:







in
person









1The
section is described as an extra-ordinary provision which allows the
Court, as a court of first instance, to correct irregularities in
proceedings before the High Court and any other tribunal or
authority established by law. This power can only be exercised by
this Court once it takes cognizance of such irregularity and assumes
jurisdiction.
Malumo
para 15.