Pienaar v S (SA 13/2016) [2017] NASC 3 (13 February 2017);

Group

Full judgment

REPORTABLE

CASE NO: SA 13/2016

IN THE SUPREME COURT OF NAMIBIA

 

In the matter between:

 

ADRIAAN JACOBUS PIENAAR

Appellant

and

 

THE STATE

Respondent

 

Coram: SHIVUTE CJ, MAINGA JA and CHOMBA AJA

Heard: 20 October 2016

Delivered: 13 February 2017

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APPEAL JUDGMENT

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MAINGA JA (SHIVUTE CJ and CHOMBA AJA concurring):

  1. Appellant is awaiting trial in the Mariental Regional Court on thirty three counts of fraud and alternatives of theft by false pretences and theft. He is also charged in the same court with eleven counts of contravening s 30(1) of the Immigration Control Act 7 of 1993. Appellant also has a pending case in the Keetmanshoop Magistrate’s Court charged with a contravention of s 50 of the Immigration Control Act 7 of 1993 that is, entering into Namibia after having previously been removed or ordered to leave the country. In that case appellant had applied for bail which was refused. An appeal to the High Court against the refusal of bail was dismissed. Appellant also has a partly heard matter in the Windhoek Regional Court. In the Windhoek Regional Court case appellant had deposited N$10 000 for bail but withdrew same, which means he is remanded in custody on that case as well.

 

  1. This appeal arises from the forty-four charges appellant is arraigned in the Mariental Regional Court. He applied to be released on bail in that court but the application was refused. An appeal to the High Court was dismissed. Appellant appeals to this court with leave of the High Court.

 

  1. The grounds of appeal on which appellant relies for this appeal are in this form.

 

(a) The learned judge misdirected himself on the facts and/or law when he refused to release the appellant on bail for the following reasons;

 

(i) On the evidence on record appellant is on subpoena on 9 of the 10 combined criminal cases and thus appellant could only apply for bail on the one criminal offence. If the State intended to cancel the subpoenas it should have brought a substantive application to undo s 63 of the Criminal Procedure Act 51 of 1977. Bail, warning or subpoena stands until properly changed by a court of law.

 

(ii) On the Mariental case on which appellant must have applied for bail, the evidence shows that he has no case to answer. The complainant in that case prematurely deposited a post-dated cheque, 9 days before the agreed date. Even evidence from the investigating officer shows that on the agreed date there was money in appellant’s account.

(b) The Regional Court Magistrate and the learned judge misdirected themselves when they found that: (i) there was a strong case against the appellant, (ii) appellant was a flight risk (iii) appellant had a propensity to commit further offences.

 

  1. Appellant alleges that there are other numerous misdirections on the facts and law by the learned judge and that once he had received the record of the proceedings, he would have supplemented his grounds of appeal. Appellant did not supplement his grounds of appeal. What appears above are his only grounds of appeal. For the purposes of this judgment I accept that appellant is a layman, he may have no idea what the grounds of appeal entail.

 

  1. The High Court found that appellant’s appeal was academic for the reasons that even if that court were to admit him to bail, it was of no consequence, as appellant would continue to find himself in detention in respect of other cases pending elsewhere in other courts in the country, for example, Keetmanshoop Magistrate’s Court and Windhoek Regional Court. In this regard the High Court made reference to the appeal appellant had made to the High Court against the refusal of bail by the Keetmanshoop Magistrate’s Court which Unengu AJ had dismissed and appellant did not appeal against the dismissal of that appeal. The High Court also made reference to the fact that appellant was in custody on the criminal offences pending in the Windhoek Regional Court after appellant withdrew the bail money he had deposited for those offences. The court below further found that appellant had the propensity to commit further crimes. In this regard it stated that appellant was released on bail in 2010 by Muller J. At that time appellant was facing nine charges of fraud, but the charges have since increased to forty four. The court below further rejected appellant’s assertion that he had documentation from the Ministry of Trade & Industry (as it was then known) relating to the registration of a particular close corporation. The court below further found that given the possibility that the State may have a strong case against the appellant, the likelihood exists that if released on bail he may abscond.

 

  1. Notwithstanding the findings above, and the concession by the court below that appellant had no prospects of success on appeal, leave to appeal was granted. It appears that leave to appeal was granted for two reasons, namely, (1) when the court below refused appellant’s appeal to be released on bail, it did not inform appellant of his rights to appeal to this court, (2) the State failed to seek amendments or variations or cancellations of bail conditions granted to the appellant in the various district courts when all offences against him were consolidated to be heard in the Mariental Regional Court. According to the court below, in cases where appellant was granted bail, the said bail conditions were valid until amended, varied or cancelled. I would have no quarrel with the court below’s conclusion on the second reason why it granted leave to appeal. But the question arises whether having held that appellant had no prospects of success on appeal, could the court below grant leave to appeal for the two reasons on which leave to appeal was granted. In my view, the learned judge should have refused leave. Where prospects of success are absent leave should be refused, but where prospects exist after a well-considered conclusion on the facts, leave to appeal ought to be granted. See S v Ningisa & others 2013 (2) NR 504 (SC) at 508. As was said in the Ningisa matter, it should always be remembered that even if leave to appeal is refused, it is still open to the appellant to petition the Chief Justice for leave to appeal.

  2. In this case the court below granted leave to appeal on the ground that it omitted to inform appellant of his rights to appeal after it refused his bail appeal. As a result, appellant approached this court without leave but was referred back to the High Court to seek leave to come to this court. Ordinarily leave should have been refused because he failed to appeal within 14 days after his appeal was dismissed. But for the reason that appellant’s failure to appeal within 14 days was occasioned by the court below’s failure to inform him of his rights, that court condoned that failure on the part of the appellant. Whatever irregularity the court below might have committed was purged and where the court was satisfied that he had no prospects of success on appeal it should have refused leave to appeal. The second ground on which leave was granted has no merit too. Whether the State failed to seek amendments or variations or cancellations of bail conditions in other cases on which appellant was granted bail in the various district courts before all cases against the appellant were consolidated to be heard in the Mariental Regional Court, the fact remains however, that he admits he was not granted bail on the offences in the District Court of Mariental. Even if I were to accept that he was on bail on all the other cases except those of the Mariental District Court, the Regional Court must have denied him bail on those cases. In fact the court below in its judgment dismissing the bail appeal, rendered the second ground on which leave was granted inconsequential, when it said the following:

 

‘[41] Magistrate Chizhande, who delivered the judgment in the court a quo in this instance, at least noted in his judgment that the appellant had contended that he should be admitted to bail since the High Court had granted him bail in the past. The learned magistrate then went on to consider the strength of the State’s case, the flight risk that the appellant posed and the likelihood that he would commit further crimes if released on bail and then concluded, after the consideration of these further aspects, with reference to the personal circumstances pertaining to appellant, that it would not be in the interests of justice that appellant be admitted to bail.

 

[42] It emerges that, at least superficially, the fact that the appellant had been granted bail by another court, was considered, together with the further factors placed before the court, in the judgment which is now the subject matter of this appeal. It emerges also that the learned magistrate did not consider the other cases, such as the granting of bail, which had occurred in the Walvis Bay Magistrate’s Court, for instance, and that this was certainly a misdirection. Whether or not this amounts to a material misdirection, probably depends on the circumstances of the entire case.

 

[43] In this instance I believe that this misdirection is ultimately inconsequential.

 

[44] I have already stated that this appeal is academic, in circumstances where the appellant, even if released on bail, would nevertheless find himself in detention in respect of the other cases pending against him in other courts.’

(My underlining)

 

  1. Be that as it may, this matter is now before us. The real question which arises for determination is whether the refusal to admit the appellant to bail by the Mariental Regional Court and the court below is justified by the body of evidence on record.

 

  1. Application to be released on bail is an ancient, traditional procedure and a fundamental right. See S v Ramgobin & others 1985 (4) SA 130 (N) at 131I. Article 11(1) of the Constitution of Namibia sanctions arrest and detentions provided the arrest or detention is not arbitrary. Sub-article (3) further sanctions arrests and detentions on the authority of a magistrate or other judicial officer. Article 7 protects personal liberty but provides further that ‘except according to procedures established by law’. So the basic objective traditionally ascribed to the institution of bail, namely to maximize personal liberty protected in Art 7 is limited by the Constitution itself and chapter 9 headed ‘Bail’ of the Criminal Procedure Act 51 of 1977. Section 61 in particular provides:

61. Bail in respect of certain offences.

 

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 trial.’

 

 

  1. Fraud is one of such crimes referred to in Part IV of Schedule 2.

 

  1. In this case as the court below correctly pointed out, appellant was initially charged with nine counts of fraud for which he was granted bail but he later withdrew the bail money. After he was released on bail he is alleged to have committed further thirty-three offences of fraud and eleven offences of contravening 30(1) of the Immigration Control Act. Appellant is innocent until proven guilty but it must be remembered that he does not deny the offences. His defence is that the fraud offences are civil in nature as he acquired the goods that form the content of the charges on credit. But evidence shows that appellant’s modus operandi of holding himself as a business person of means may well amount to fraudulent misrepresentations. Any offence committed at the rate the offences against the appellant were committed is outrageous. The appellant is alleged to have committed the fraud offences. Whether or not the offences were committed is yet to be determined at the trial. Regrettably fraud like corruption as our courts have ad neuseum stated, appear to be raising its ugly head everywhere in our society. See S v Ganes 2005 NR 472 (HC) at 431. A quick perusal of the Prosecutor-General’s indictment shows that the crimes were committed in about 9 – 10 towns and suburbs in the country. From Noordoewer, Luderitz and Karasburg in the south to Swakopmund and Walvisbay in the west and Grootfontein in the north-east. That alone speaks volumes and a clear indication that appellant has a propensity if released on bail to commit further crimes. In fact that he had done already when he was released on bail.

 

  1. Judicial officers, in dealing with run of the mill bail applications, take an overall and broad view of the matter. They have always taken into account the seriousness of the offence, the probabilities of a conviction, the nature of the probable sentence, and the ability to put up bail. All these factors go to the likelihood whether the accused will stand trial, the main consideration in deciding the bail issue. See Minister of Safety and Security & another v Carmichele 2004 (3) SA 305 (SCA) at 331I-332A.

 

  1. It is common cause that appellant is a peregrinus. The allegations in the charges of contravening s 30(1) of the Immigration Control Act is that he entered Namibia on a visitors entry permit. That permit must have long expired. There is nothing that binds him to Namibia. Appellant maintains that he has a girlfriend and a child that he resides with, but that is all that there is. The case pending against the appellant in the Keetmanshoop Magistrate’s Court relates to a contravention of s 50(1) of the Control Immigration Act. In terms of s 50(1) appellant must have been dealt with previously under the Act, i.e. either he was deported from Namibia or ordered to leave Namibia. Sections 30(1) and 50(1) carry sentences of 3 and 5 years respectively with optional fines of N$12 000 and N$20 000. The crimes of fraud are very serious and the amounts involved are big. If convicted, appellant would receive a long sentence. In terms of s 30(1) appellant is prohibited to seek employment or conduct any business in this country. It is unlikely that if released on bail he would sit idle in this country doing nothing, awaiting his trial. The possibility is great he would abscond and not stand his trial. I must not be understood to say a peregrinus is not entitled to bail by any circumstance or in favour of detention without trial. Liberty is one of those rights men and women of this country fought and died for and should be jealously protected at all costs.

 

  1. In as much as I hold the view that courts should always lean towards liberty where the circumstances so warrant, this appeal points in the opposite direction. After a careful consideration of the circumstances of the appellant, the High Court correctly dismissed the appeal to admit the appellant to bail but it erred when it granted him leave to appeal. The check-list in s 61 above which includes the interests of justice militates against the granting of bail in this case. Therefore the appeal should fail. I can only wish that the trial would gain momentum soon. The interlocutory applications other than the bail appeal that appellant brought to the High Court, are in my opinion sideshows that have unjustifiably taken up space for the trial itself.

 

  1. In the result I make the following order.

 

The appeal is dismissed.

 

 

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MAINGA JA

 

 

 

 

 

 

 

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SHIVUTE CJ

 

 

 

 

 

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CHOMBA AJA

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES:

 

Appellant:

 

 

 

 

 

 

 

 

 

In Person

 

 

Respondent:

E E Marondedze

 

Instructed by the State