CASE NO.

: CA 29/2011 IN THE HIGH COURT OF NAMIBIA In the matter between

SHAUN ROSS versus THE STATE

APPELLANT

RESPONDENT

CORAM: Heard on: Delivered on:

SIBOLEKA, J 2011 July 18 2011 August 09

________________________________________________________________________ APPEAL JUDGMENT: (BAIL) SIBOLEKA J:

[1]

This is an appeal against the Magistrates Courts refusal to grant

bail to the appellant.

[2]

In the Court a quo, bail was opposed on the following grounds:

The seriousness of the matter Interference Bail was previously granted to accused and offences were committed during that period The prevalence of offence of stock theft Number of cases: - 18 Fear of absconding Strength of the States case Public interest Further investigation will be interfered with if accused person is released on bail.

Mr. Uanivi appeared both in the Court a quo and in this Court for the appellant, Mr. Marondedze for the respondent. This Court is indebted to both counsels valuable contributions in this regard.

The appellants main heads of argument does not set out the grounds of appeal indicating points in law or fact if any where the Magistrate has misdirected himself in refusing bail.

In his testimony the appellant said he was born in 1978, and finished his school at Cosmos High School in Windhoek. His passport had already been taken by the police. He owns a house in Swakopmund another one

in Windhoek and a big truck, Scania the value of all his property is N$500,000.00. He is a Manager at Klein Spitzkop Transport where he earns N$5,000.00 per month after deductions. He is a farmer, digs

stones which he sells to tourists. He has three farm workers, a truck driver , a secretary, and a domestic worker.

His business is down since his arrest and his elderly parents are taking care of his property. His mother had a heart attack last year, such that she is not of much assistance. He has three children aged 12, 6 and 3 years respectively and they reside with his mother. He is single, but

wants to get married, and his three children require to be taken to school. His trucks drive out of the country, but he does not do so

because he personally does not have any business or family ties outside Namibia. In custody he sometimes assists with work outside the Police Cells and sometimes he is left unattended. He was released on bail of N$5,000.00 in 2009 on condition he did not interfere with the investigation. He was re-arrested in 2011 for one case only, and from there other cases came up when members of the community were given notice by the traditional leader to come at his farm and identify their animals. This they did on skin colour and birthmark without any proof of ownership.

He testified that he never made or tried to make contact with the investigation officer or any of the witnesses on the matter. Whenever he has credit he only calls his parents.

He said there was no demonstration against him on this matter and neither was he threatened by any member of the public should he be released. He was also never approached by any member of the print He however read a newspaper report where the

media on that score.

investigating officer, Uirab allegedly gave information and told members of the community to come to Court and demand that he not be released on bail. He will plead not guilty to all the charges, because all the

animals that were identified belong to him and he has proof to that effect.

The claims against him are about animals that disappeared between 2008 and 2009 without indication of the dates. According to him all

these claims started after his re-arrest, and he wonders why the claimants did not make any reports to the police at the time of losing the cattle. According to the appellant that is how he came up with 18 cases involving more than 60 cattle, and there are altogether 15 complainants still unknown to him.

At that stage his health was well, but he has a heart problem as a diabetic person. He injects himself with insulin and in a To whom it may concern letter his doctor confirmed that he also has blood pressure which could be worsened by overcrowdiness, cigarette smoking and smoke inhalations. In my view the contents of this letter has been taken care of since the appellant was transferred to Arandis. This was

confirmed by the investigation officer in his evidence during the bail application. The appellant will be allowed free access to the

recommended food supplies brought by his relatives. The prescribed foods are a cup of skimmed milk, whole wheat, butter, and juice for breakfast. He testified that he is unable to eat recommended foods There he is given

because there is nothing in custody where he is.

porridge and kitchens are dirty and full of cockroaches all over. According to him they dont have a non smoking cell, and generally cells are dirty and overcrowded. He feels dizzy, is sweating and is being

treated as if he has no rights. I must mention here that the appellants right to freedom was affected when he was re-arrested on fresh stock theft charges.

He said he has 4 to 5 stock theft cases in Khorixas where he was granted N$6,000.00 bail.

He further testified that he wanted to be granted bail because of his business. Two of his employees are married and want to be paid. Those in the transport business only want to do business with him and not his parents. His mother did not go to Parama Hospital in South Africa

because he could not provide her with money. His children are being teased around at school, and should this Court consider bail in his favour, he is able to afford N$5,000.00 and has no objection to any conditions.

Jefrey Uirab testified in opposition to the granting of bail in his capacity as the investigating officer. According to him the cases relating to the appellant that he investigated were at an early stage. He feared that the same would be interfered with if the appellant was released on bail. He stated that when the appellants brand iron mark was confiscated by the police, he made two more for himself, something which according to this police officer should not have been done. He testified that stock theft is high at Usakos and surrounding areas which according to him negatively affects community members who largely depend thereon. He is

investigating five stock theft cases against the accused and ten at Usakos. Appellant has three stock theft cases in Khorixas for which he had been granted bail. He stated that there is a public outcry by

community members requesting that the police should protect their

animals. As part of their work with communities, police officers are thus allowed to attend such meetings.

He denied ever organizing mass protests against the appellant being granted bail. According to him such an exercise is not allowed. He

testified that he has a strong case against the appellant.

He further

stated that he went to Veterinary offices at Omaruru but could not find any record of the accuseds stock book or registration. According to this officer all stock bought at auction pens are registered and the same is done when they arrive at the buyers farm. This record is then availed to the Veterinary offices.

This officer testified that complainants used to come and make reports about their stolen animals and entries were made in the Police Occurrence Book. Copies thereof were later attached to the dockets.

When Head Office gave them a go ahead to allow members of the public to come to the appellants farm to see if they could identify their animals, that was done. He said it was only after animals were identified by their respective owners that cases against the appellant were opened. This

witness testified that the appellant was not denied access to medication, and that if that was the case he did not report it to the Station Commander in order to be sorted out.

According to him Police Cells at Usakos are very small and that is why some inmates are transferred to Arandis where there is more space.

In cross-examination this officer confirmed that the appellant has five cases at Karibib, and 20 stock theft complainants from Omaruru, Karibib, and Usakos. According to him it will not be in the interests of justice to release the appellant on bail.

In his oral arguments before Court Mr. Uanivi said medical prescriptions from the doctor were handed into the Court a quo during the bail application. According to this counsel these related to the appellants

diabetic condition and needs, but perusal of the record from the Lower Court only has a to whom it may concern letter. The appellants

evidence in chief and cross-examination does not mention or refer to any medical document handed into Court. This also seems to be the case from the following questions posed by Mr. Uanivi to the investigation officer.

At page 40 of the record in the Court a quo

Q: Accused 1 applies for bail because his health condition is worsening tell the Court what is the procedure of accused in custody to receive proper health treatment and a strict diet? A: Is true that we dont give special food but if there is a special diet accused can make an application to be transferred to where his doctor is and for a special diet.

Q: A: Q: A:

Such application can be made through a letter. If he has proof of a special diet he can give to the Station Commander to act on it. On 2 March 2011 that if such diet prescriptions arrive arrangements can be made? Correct.

From the above it is unlikely that other medical documents relating to the appellants diabetic condition were handed in during the bail hearing.

In addition to the above here is how the appellant sketched the reason for his desire to secure a release on bail, on page 18 of the Court a quos record:
I want to be granted bail because of the business two of my employees are married and they want to be paid. And as for the transport business they want to do business only with me and not my parents, My underlining My parents health is deteriorating and my mother was supposed to be in SA at Parama Hospital but she couldnt go as I couldnt provide her with money. My underlining

The appellant clearly emphasized the deteriorating health of his parents and the state of his business as the reason why he wanted to be released on bail, instead of his heart problem and blood pressure.

The appellant conceded during cross-examination that he was already on bail when fresh allegation of stock theft were made against him. The

learned Magistrate in the Court a quo referred to this aspect in his

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reasons for refusing bail.

This is an unhealthy state of affairs that

operates against the appellant. In my view he is expected to know that he runs a risk of not easily convincing the Court to be reconsidered for bail after his re-arrest. It is also interesting to note that the same

allegations of stock theft were again leveled against him while on bail.

Section 3 of Act 5 of 1991 reads:

3 The following section is hereby substituted for section 61 of the principal Act: 61. 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, not withstanding 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 interests of the public or the administration of justice that the accused be retained in custody pending his or her trial. My own underlining.

I agree with the reasoning in the authorities cities by Mr. Uanivi and in my view the Magistrates decision is within the rationale expressed therein. One of such cases is the unreported judgment of Timotheus v The State, delivered on 22 August 1995 where Strydom, JP as he then was stated that:

Considerations such as public interest may, if there is proper evidence before the Court, lead to refusal of bail even where the possibility of abscondment or interference is remote.

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I am unable to find fault or a misdirection in the reasoning of the Magistrate for refusing bail. The appellant had already been granted bail but did not behave properly, and as a result new allegations of stock theft resurfaced again. In my view the justice system could easily be

seen not to care for what the appellant is allegedly doing to other peoples animals. I also agree with the reasoning of the Magistrate that sugar The investigation officer testified that he is not

diabetes is treatable.

aware of any report relating to refusal for the appellant to access any form assistance from his relatives and no report in that regard has been made to the Station Commander.

In the result I make the following Order: 1. The appeal fails. 2. The appellants relatives must be allowed free access to the appellant whenever they bring the basic needs he requires, this includes food and medication. 3. The appellant must be taken for medical attention if he so requests, and this must be attended to without fail.

_________________ SIBOLEKA, J

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COUNSEL ON BEHALF OF THE APPLICANT: INSTRUCTED BY:

MR. UANIVI LEGAL AID

COUNSEL ON BEHALF OF THE RESPONDENT: INSTRUCTED BY:

ADV. MARONDEDZE

THE OFFICE OF THE PROSECUTOR-GENERAL