REPUBLIC OF NAMIBIA NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT
Case no: CA 02/2014

In the matter between:

GAVIN HENRY PETER NOBLE APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Noble v State (CA 02/2014) [2014] NAHCMD 117 (20 March
2014)

Coram: HOFF J

Heard: 27 February 2014

Delivered: 20 March 2014

Reasons: 31 March 2014

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ORDER

(a) The appeal against the decision by the magistrate refusing to release the
appellant on bail, is dismissed.

(b) The appellant remains in custody at the Walvis Bay Prison pending the
finalisation of his trial in the Walvis Bay Magistrate’s Court.

JUDGMENT

HOFF, J:

[1] This is an appeal against the refusal of bail by the magistrate in the Walvis
Bay Magistrate’s Court.

[2] The appellant launched two bail applications in the magistrate’s court. The
first application was launched on 22 October 2013 which was subsequently refused
on 29 October 2013 on the ground that it was not in the public interest and the
interest of the administration of justice for the accused to be granted bail.

[3] In the heads of argument it was stated by Mr Namandje who appeared on

behalf of the appellant that this ‘appeal is based mainly on the second application
which was brought based on new facts’.

[4] The second application was brought on 6 December 2013 and refused on
16 December 2013. The appellant was legally represented in both applications. The
magistrate concluded in the second application that nothing the appellant had placed
before her had convinced her that the ends of justice would be better served by the
release of the appellant.
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[5] In his notice of appeal the appellant noted ‘an appeal against the whole of the
judgment of his Worship Magistrate Nicolaidis, delivered at Walvis Bay Magistrate’s
Court on or about 16 December 2013 when she refused to release the appellant on
bail’.

[6] It was stated in the notice of appeal that the grounds of appeal were inter alia
the following:

‘1. The learned Magistrate erred in deciding that availability of a higher amount
than the one suggested initially does not amount to new facts.

2. The learned Magistrate erred in not fully and properly considering the fact that the
appellant has since been acquitted of the pending matter.

3. The learned Magistrate failed to properly consider evidence relating to prison cell
conditions and the deteriorating health condition of the accused persons.

4. The learned Magistrate failed to properly consider the prejudice and adverse effect of
the continued detention of the accused persons on his business.

5. The learned Magistrate erred in appearing to subject herself to a self-imposed

restriction on her discretion regarding old cases. In that respect she failed to properly
exercise her discretion.

6. The learned Magistrate therefor failed to properly and wholly consider the question of
bail particularly given the appellant’s constitutional presumption of innocence until
proven guilty and thus did not satisfactorily exercise a discretion when she turned
down appellant’s bail application.’

First bail application

[7] The appellant during the first bail application testified that he was born in
Walvis Bay, that he owns immovable property (a house) in Walvis Bay; that he was
willing to hand over his passport (to the authorities); that he was arraigned with
another person Dominic Philips in another case in the Walvis Bay Magistrate’s Court
on a charge of being found in possession of ‘narcotics’, that the present charge
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against him relates to an allegation that he was found in possession of ’14 crack
cocaine’ valued at about N$1400; that he could afford to pay N$10 000 as bail
money; that he was willing to report to the police station and would comply with any
conditions imposed by the court; that he would attend court proceedings; that he
would not abscond; that he has family (children) in Walvis Bay; and that he would not
interfere with State witnesses. It must be stated that appellant faces a charge of
dealing in cocaine in contravention of the provisions of s 2(c) of Act 41 of 1971 as
amended.

[8] During cross-examination by the prosecutor the appellant did not dispute that
the current offence for which he is arraigned in the magistrate’s court relates to
cocaine which had been found in his motorvehicle; did not dispute that there is a
huge public outcry against drug related offences in Walvis Bay; that when the
present offence was committed he was out on warning on another drug related
offence; that he had 18 previous convictions relating to various offences between
1973 and 1988; that after 1988 he had several ‘brushes with the law’; and that during
July 2011 he paid an admission of guilt in respect of the possession of cannabis.

[9] The appellant called one, Dominic Philips, who testified that cocaine was
found in his (ie Philips’) fishing rod inside the garage of the accused person and that
Philips would plead guilty to the possession of cocaine. It was put to the appellant
that should Philips plead guilty the appellant would be found not guilty. This
concluded the evidence in support of the first bail application.

[10] The State in opposing the bail application called Freddy Basson a member of
the Namibian Police Force who holds the rank of detective chief inspector with
23 years experience. He testified that the appellant committed this offence whilst out
on bail; he testified about the previous convictions (admitted by the appellant); that
the appellant was arrested during 2008 for possession of cannabis and convicted;
that the State has a strong case against the appellant since the appellant was found
in possession of cocaine which was inside his motorvehicle, and that he feared that
the appellant would interfere with the State witnesses.

[11] The State called a second witness one housewife who moved to Walvis Bay
during the year 2006. She testified that during 2007 she approached a taxi driver in
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order to assist her to find a ‘merchant’ in Walvis Bay since she was in need of ‘crack
cocaine’. She was taken to the house of the appellant where a man known as Clyde,
who is related to the appellant, provided her with drugs inside a garage.
Subsequently she had gone to the house of the appellant at night and the appellant
himself had provided her with the required drugs. Occasionally the appellant
delivered the drugs to her at her house. She testified that she stopped using drugs
for a while but during the year 2008 she started using drugs again and were provided
with drugs from other dealers but received drugs mostly from the appellant. She
testified that whilst the appellant was out on bail during the year 2008 the appellant
served her with drugs. She testified that she spent an average N$35 000 per month
and financed her habit in part from the salary of her husband (who was also addicted
to drugs) and in part from the proceeds of prostitution since prostitution was the only
way in which she could generate the necessary additional funds. She testified that
she bought drugs from the appellant until December 2009 just before she left Walvis
Bay. She testified that she only bought crack cocaine from the appellant. This
witness also described certain tattoos on the body of the appellant which could only
be seen when the upper part of his body was not covered. At the time she testified
she had been ‘clean’ for three and half years. This witness also testified about the
devastating effect her drug abuse had on family life.

[12] During cross-examination it was put to this witness that the reason she
testified against the appellant was because of a personal vendetta against the
appellant. This was denied. This witness was not informed about the nature of this
alleged personal vendetta against the accused. The evidence that the appellant sold
crack cocaine to this witness over a period of two years was never denied during
cross-examination.

[13] It is not necessary at this stage to evaluate in detail the reasons provided by
the magistrate for refusing bail since this appeal does not lie against the first
application. It is however appropriate in my view to refer to a few of her reasons. The
magistrate referred to the probability of interference with the administration of justice
on the basis that when the appellant was apprehended he tried to throw away the
cocaine in question and subsequently tried to swallow it; that the State has a strong
case against the appellant since he was caught red-handed and there is a real
possibility of a direct term of imprisonment should he be convicted; that the appellant
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has a propensity of committing offences, and that the grounds on which the State
relied in opposition to the granting of bail cannot be remedied by attaching certain
bail conditions.

[15] The appellant in the second bail application testified that he understood that a
second bail application could only be made on new facts ie facts which arose after
the first bail application.

[16] In this regard the appellant offered to increase the money tendered for bail
from N$10 000 to N$50 000. The appellant testified that during the year 2006 he
underwent a ‘liver operation’ in Windhoek. It is not disputed that at this stage the
appellant suffered from a liver condition. The appellant testified about the unhygienic
conditions in the holding cells of the police station in Walvis Bay; that he had
consulted a medical doctor subsequent to the first application who had advised him
to undergo a liver operation; that there is a lack of privacy in the police cells; that he
is on a special diet which are not regularly provided to him in custody and that he
takes medication daily; that he is employed by Nobility Hardware CC of which he is
the sole member; that subsequent to the denial of bail the manager who assisted
him in his business to look after his ‘lorries’ and to keep them on the road, left the
business; that he transports containers from Walvis Bay to Oshikango and that after
the manager had left the drivers of the trucks also left; and that his position in
respect of his pending trial has changed since he had been found not guilty (in the
case where Philips was his co-accused).

[17] During cross-examination by the State the appellant stated that he needed
assistance to move and needed a balanced diet. The appellant intimated that it
would be to his advantage should he be placed in a facility where his family could
provide him with food but indicated that in respect of business operations he needed
to be released and could not delegate tasks to other individuals.

[18] The State called Simeon Amutse a senior superintendent employed by the
Department of Correctional Services in Walvis Bay, who testified that there are
facilities available for trial awaiting prisoners accommodating one individual in one
cell, which contains a toilet and a washing basin; that there are single beds, but if
required an individual may bring his or her own mattress; that there is a clinic but no
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permanent nurses, but that the State hospital provides nurses on Mondays and on
Fridays to do observations and referrals; that if necessary an individual may be
referred to a private doctor at own expense; that an individual would be assisted in a
medical emergency; and that arrangements can be made for an individual to see a
doctor.

[19] During cross-examination this witness admitted that a full time medical
practitioner should be available at the prison but that they were in the process of
appointing such medical practitioner although he could not say when such an
appointment would be made.

[20] The magistrate in her judgment referred to the matter of S v Mpofana 1998 (1)
SACR 40 (TkHC) which dealt with the factors to be taken into account during a
second bail application.

[21] In Mpofana at 44g-45a Mbenenge AJ stated the following in this regard:

‘In considering an application allegedly brought on the strength of new facts, the
court’s approach is to consider whether there are, in the first instance, new facts and, if there
are, reconsider the bail application on such new facts against the background of the old
facts. In S v Vermaas 1996 (1) SACR 528 (T) at 531e-f, Van Dijkhorst J set out the
applicable approach in the following terms:

“Obviously an accused cannot be allowed to repeat the same application for bail
based on the same facts week after week. It would be an abuse of the proceedings. Should
there be nothing new to be said the application should not be repeated and the court will not
entertain it. But it is a non sequitur to argue on the basis that where there is some new
matter the whole application is not open for reconsideration but only the new factors. I
frankly cannot see how this can be done. Once the application is entertained the court
should consider all the facts before it, new and old, and on the totality come to a conclusion.
It follows that I will not myopically concentrate on the new facts alleged.”
In my view, the above dictum should be interpreted to mean that, whilst the new application
is not a mere extension of the initial one, the court which entertains the new application
should come to a conclusion after considering whether, viewed in the light of the facts that
were placed before court in the initial application, there are new facts warranting the granting
of the bail application.’
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[22] In respect of the amount of N$50 000 tendered the magistrate found that this
was not a new fact but merely a varied one since the presiding magistrate has a
discretion to fix the amount of bail to be paid by an accused person. In this regard
the magistrate relied on the matter of S v Tjapa 2010 NAHC 135. The magistrate
found that the higher amount tendered by the appellant couldn’t sway the court in
favour of granting bail to the accused person.

[23] In respect of the offer by the appellant to live in Windhoek in the interim until
his court appearance, the magistrate mentioned that this point was raised in order to
alleviate the concerns of the local community that the appellant is a threat to them
and that they needed protection from the appellant. The magistrate held that to
accede to the request of the appellant would amount to ‘passing the buck’, in the
sense that it may relieve the local community but ‘that a change of scenery’ would
not necessarily bring about a change in the attitude of the appellant (referring to his
frequent clashes with the law).

[24] In respect of the deteriorating health of the appellant the magistrate accepted
that the appellant is suffering from a liver condition which affects his health
negatively. The magistrate referred to the testimony of the appellant that he needed
medication, a special diet, and a healthy lifestyle. The magistrate further accepted
that the conditions in the police cells are ‘atrocious’ and not conducive to the
well-being of any person.

[25] The magistrate with reference to case law however found the health condition
of the appellant not to be a new fact since it existed at the time when the initial
application was brought but was not brought to the attention of the court.

[26] In respect of the business which had been abandoned by his business
manager the magistrate was of the view that owners do not often run their business
themselves and that the appellant has a supporting wife and children in whose
interest it would be to ensure that the business operations continue. The allegation
by the appellant that there was no one to run his business was insufficient to
convince the court to grant bail according to the magistrate.
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[27] The magistrate was also not swayed by the fact that a trial date was known,
neither by the fact that there were no pending cases involving the accused person. In
this regard the magistrate held that the appellant has clearly shown his propensity to
commit further offences and the fact that the appellant has now one case less before
court did ‘not alter his reality’. The magistrate referred to the case of S v Patel 1970
(3) SA 565 (WLD) at 568B-C where the following was stated by Cilliers JP:

‘It seems to me that an applicant’s past record, his actions immediately prior to the
application for bail and particularly while he was out on bail in respect of another charge,
may be relevant factors, particularly when they indicate a propensity to commit a particular
type of crime. In present circumstances that consideration has to be weighed up against
certain personal considerations such as the accused’s age and his ailment, and naturally,
the principle that bail should be granted where it will not affect the interests of justice;. . .’

[28] It appears from the record that when the magistrate postponed the matter on
10 December 2013 for her judgment she ordered the appellant to be detained in the
Walvis Bay prison as a trial awaiting prisoner.

[29] Mr Namandje who appeared on behalf of the appellant in this appeal hearing
criticised the finding of the magistrate that the tendering of more money by the
appellant for purposes of bail did not amount to a new fact as well as the
magistrate’s reliance on S v Tjapa (supra). It was submitted that the Tjapa decision
was wrong and that neither the magistrate nor the presiding judge in the Tjapa
matter relied on any authority for the proposition that the availability of more funds
should not be considered as a new fact ‘in law’.

[30] It was submitted that an amount of money does reduce the risk that an
accused may abscond and the court has to determine an amount that will compel the
accused to stand trial rather than to lose his bail money. The court was in this regard
referred to relevant authorities.

[31] The question whether or not an accused person would abscond and would
not stand his or her trial was one of the main considerations in determining the
question whether or not an accused person should be released on bail under the
traditional approach. One other consideration is whether there is a reasonable
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likelihood that if released on bail the accused will interfere with witnesses or tamper
with the relevant evidence or cause such evidence to be suppressed. 1

[32] Subsequently s 61 of the Criminal Procedure Act 51 of 1977 has been

amended by s 3 of Act 5 of 1991 to the effect that bail may be refused if in the
opinion of the court 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 notwithstanding the
fact that the court is satisfied that it is unlikely that the accused, if released on bail,
will abscond or interfere with any witness or with the police investigation.

[33] The question when it would be in the interest of the public or in the interest of
the administration of justice has previously been considered by this court and it was
held that these concepts should be given a wide meaning. One of the factors which
may be considered are the pronouncements of the courts over a long period or
where there is a strong prima facie case against an accused person. In such an
instance a court would be entitled to refuse bail since the enquiry is now much wider
even if there is a remote possibility that an accused would abscond or interfere with
State witnesses or with the police investigation.

[34] The crucial criteria, in terms of the provisions of s 61 as amended, is the

opinion of the presiding officer whether it would be in the interest of the public or the
administration of justice to refuse bail.

[35] In the unreported case of Charlotte Helena Botha v The State CA 70/95
delivered on 20.10.1995 it was held by O’Linn J that ‘a judicial officer will therefore
obviously have to make a value judgment of what are the legal convictions of society
and what is the impact of such convictions on the particular case where the court
must adjudicate on an application of bail’.

[36] It has been held in the unreported case at Solomon Hlalela and Others
CA 89/95 and delivered on 4.12.1995 that where an accused has been charged with
the commission of a serious offence, and that if convicted a substantial sentence of
imprisonment would in all probability be imposed, that that fact alone would be
sufficient to permit a magistrate to form the opinion that it would not be in the

1
S v Acheson 1991 NR 1 at p 19-20.
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interests of either the public or the administration of justice to release an accused

person on bail.

[37] I shall now return to the criticism that the magistrate exercised her discretion
wrongly by disregarding the offer of increasing the bail money by the appellant.

[38] I agree with Mr Namandje that the amount of bail is a factor to be considered
and may reduce the risk that an accused may abscond. However the magistrate in
her reasons stated that it has always been a fact that the appellant would be able to
pay a substantial amount of money for bail but this nevertheless did not sway the
court in granting bail.

[39] In my view whether or not the magistrate should have regarded the increase
in the offer by the appellant, cannot assist the appellant in view of the fact that the
magistrate refused bail on the basis that it would not be in the interest of the
administration of justice to grant bail to the appellant. The question is, if there are
new facts placed before the court, whether the new facts warrant the granting of
bail. 2

[40] The magistrate certainly, even if she should have found it as an new fact, did
not regard the amount of money as a fact which warranted the granting of bail to the
appellant.

[41] It was submitted by Mr Namandje on behalf of the appellant that during the
first bail application the magistrate attributed considerable weight to the fact that the
accused had a pending case and used this to substantiate that the appellant has a
propensity to commit crimes but when it became clear that the appellant had since
the first bail application been acquitted, this was brushed aside as a non-issue. The
magistrate was taken to task for not sufficiently applying her mind in this respect.

[42] In my view of the reasons by the magistrate that there is a very strong case
against the appellant and that there is a real possibility that a direct term of
imprisonment would be imposed should the appellant be convicted, the magistrate
was perfectly entitled to form an opinion that it would not be in the interest of the

2
S v Vermaas supra.
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administration of justice to grant bail to the appellant. The magistrate in her reasons
referred to the matter of Charlotte Helena Botha (supra) where O’Linn J in discussing
the concept of public interest noted that the interest of the public can be equated with
the legal convictions of the community and that the legal convictions of society
encompass the legitimate, reasonable and justifiable values, expectations, norms
and fears of the law-abiding members of society. The magistrate further referred to
this judgment where it was held that where there are allegations of a brutal murder
on the part of an accused person or where an accused person who continues to
commit offences creates the impression that the public is at the mercy of such
criminals with the police and the courts being unable to effectively protect them,
releasing them on bail may create a legitimate fear in the minds of the victims that
such crimes will be repeated against them.

[43] In respect of the health situation of the appellant, it appears from the evidence
before the magistrate that this existed long before the first bail application. It was
held in S v Le Roux en Andere 1995 (2) SACR 613 (W) at 622a-b that an accused
person cannot present evidence in piecemeal fashion in bail applications and that
where evidence was concealed, such evidence cannot at a subsequent bail
application be presented as new evidence. It was held that to allow such a procedure
would be an abuse of process since it would lead to unnecessary and repeated bail
applications. It was also held that in a subsequent bail application an appellant may
not reshuffle old evidence or may not embroider upon it. 3

[44] It was submitted by Mr Namandje that the appellant testified that while he has
been in the police cells his condition became worse, that he consulted a doctor,
namely Dr Rautenbach, since the last bail application who examined him and
informed him that he needed a ‘liver operation’, and it was submitted that this
testimony was never challenged during cross-examination by the State namely the
fact that the condition of the appellant has become worse since his incarceration.
This however does not in my view detract from the fact that the appellant never
testified about his ill-health during the first bail application and cannot now present
the worsening of his condition as a new fact. In any event Dr Rautenbach in a letter
dated 19 November 2013 (Exhibit B) referred to the fact that the appellant had been
a patient of his practice since 1997, that he suffers from liver cirrhosis and had a

3
S v De Villiers 1996 (2) SACR 122 at 126e (T).
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severe upper gastric bleeding in 2006. The letter further stated that the appellant’s
‘present’ liver functions have stabilised. It was also mentioned that the appellant is a
‘health risk’ and needs ‘medical care, healthy diet and lifestyle’.

[45] Mr Namandje submitted further that the Prisons Act 17 of 1998 (as amended)
states unequivocally an in imperative terms that there shall be a medical practitioner
for every prison to serve as full-time medical officer for such a prison. Furthermore,
as testified, there was no medical practitioner stationed at Walvis Prison and that the
magistrate did not consider this evidence appropriately.

[46] However this obvious non-compliance with the provisions of the Prisons Act
must be viewed in the light of the uncontested evidence by Superintendent Amutse
that personnel at the Walvis Bay Prison are on duty 24 hours per day and will
respond in a case of medical emergency. The superintendent also testified that
arrangements may be made, if so requested by an inmate, to be examined by a
private doctor. Exhibit B corroborates his evidence in this regard.

[47] Regarding the adverse effect on the business of the appellant, due to his
absence, Mr Namandje firstly, criticised the statement by the magistrate that it is a
known fact that owners often do not run their business by themselves without
supporting evidence and that the magistrate erred in not accepting the uncontested
evidence of the appellant that he needed to be free in order to maintain his contacts
and workers. Secondly, that the magistrate erred in finding that the accused has a
supporting wife and children without there being evidence on record. The fact that
the appellant has a wife and children is apparent from the record. What is however
not clear is to what extent they support the appellant with his business operations.

[48] I agree that there is no evidence to support the view held by the magistrate
that it is a known fact that owners of businesses often do not operate the businesses
themselves. It however appears from the judgment of the magistrate that she found
the fact that the appellant’s business activities may be adversary affected by his
absence as insufficient to convince her to release the accused on bail.

[49] The approach by this court sitting as a court of appeal against a lower court’s
refusal to grant bail is that the court of appeal is bound by the provisions of s 65(4) of
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the Criminal Procedure Act 51 of 1977 namely, not to interfere and set aside the
magistrate’s decision ‘unless the 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’.
[50] In S v Timotheus 195 NR 109 HC this court at 113A-B referred with approval
to the case of S v Barber 1979 (4) SA 218 (D & CLD) at 220E-F where Hefer J
stated the approach as follows:

‘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.’

[51] In Hans Jurgen Gunther Koch v S, an unreported judgment of this court in

case CA 111/2002 Maritz J at p 10 remarked as follows:

‘One of the circumstances that may prompt the Court of Appeal to conclude that the
magistrate exercised his discretion wrongly is when his or her conclusion is vitiated by a
misdirection. Not every misdirection . . . will suffice: it must be a material one.’

[52] It is trite law in this jurisdiction that an applicant has the onus to establish the
basis justifying the granting of bail. The appellant in this matter has to persuade this
court that the magistrate has exercised her discretion wrongly.

[53] I am not persuaded that the magistrate when she found that it would not be in
the interest of the administration of justice, (for the reasons provided by her) to
release the appellant on bail has exercised her discretion wrongly.

[54] In the result this court gave an order on 20 March 2014 dismissing the appeal
against the refusal by the magistrate to grant him bail.
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----------------------------------
E P B HOFF
Judge
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APPEARANCES

APPELLANT: S Namandje
Sisa Namandje & Co. Inc., Windhoek,

RESPONDENT: D Small
Office of the Prosecutor-General, Windhoek