PROSECUTOR’S WORKSHOP

SUBJECT: BAIL IN THE NAMIBIAN CONTEXT

DATE: 12 FEBRUARY 2007

10TH FLOOR SANLAM BUILDING

PRESENTER: ADV. O.S. SIBEYA

HEAD: ANTI-CORRUPTION, ANTI MONEY-
LAUNDERING, ASSET FORFEITURE AND
EXTRADITION UNIT
INDEX PAGE

1. Introduction…………………………...................................................….3
2. Bail before first court appearance…………………................................5
3. Bail applications in court……………………… .....................................6
3.1 Introduction………………………....................................................6
3.2 Urgency of the application……………… ………..............................8
3.3 Procedure ……………….…………… ……………............................10
3.4 Onus of proof……………………....... .......................................... 18
3.5 New facts in a subsequent bail application………… …………......20
4. Evidential rules……………………………….............. ...........................20
5. Risks and issues to be considered in bail hearings……………………..22
5.1 The risk Absconding ………………………………… …………...........22
5.2 Interference with state witnesses and/or Police investigation …24
5.3 The risk of committing further offences and endangering the
maintenance of law and order or public safety or national
Security………………………………...............................................25
5.4 Public interest or the administration of justice………………...………26
5.5 Other considerations……….………….........................................31
6. Bail conditions…………………….......................................................32
7. Payment of bail………………………………..........................................33
8. Cancellation of bail and forfeiture of bail money……… …………......33
8.1 Failure by the accused to observe bail conditions……….………33
8.2 Failure by the accused to appear…………………......................34
8.3 Accused about to abscond…………………….............................34
8.4 Other cases where bail may be cancelled ……………………......36
8.5 Forfeiture and remission of bail money…………….…...............37

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9. Other forms of release……………………............................................37
10. Bail pending appeal……………………………......................................38
11. Appeal and review……………………………….....................................43
12. Duties of a prosecutor in bail proceedings………………..
……............45

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1. INTRODUCTION

Bail is the beginning of justice in the criminal justice system. Once bail
is granted it means that an accused who is in custody shall be released
upon payment of the bail money and thereafter shall appear at a place,
date and time to which the proceedings had been adjourned. The
accused shall so remain on bail until a verdict is given by the court on
the same charge and if sentence is not given immediately thereafter, the
court may extend the bail until sentence is passed.1

In deciding whether or not to grant bail, the court should strike a

balance between the interests of society and the liberty of the accused. In
so doing, sight should not be lost of the presumption of innocence, which
is a fundamental right entrenched in our Constitution. 2 Mahomed AJ in
S v Acherson3 emphasised the said presumption and stated as follows:
“An accused cannot be kept in detention pending his trial as a form of
anticipatory punishment. The presumption of the law is that he is innocent
until his guilty has been established in court. The court will therefore
ordinarily grant bail to an accused person unless this is likely to prejudice
the ends of justice.”

It should be remembered though that rights are not absolute as there are
exceptions. Our Constitution4 provides further that no person shall be
deprived of his or her personal liberty except in accordance with
procedures established by law.

1 Section 58 of the Criminal Procedure Act 1 of 1977.

2 Article 12(1)(d) of the Namibian Constitution
3 1991 NR 1 at 19E
4 Article 11
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It follows therefore that an accused can be arrested and detained, thus
depriving him of his/her liberty on condition that this done according to
law. Once arrested, an accused does not have the right to bail but only
has the right to apply for bail, whether or not bail will subsequently be
granted is another question which needs to be decided depending on the
circumstances of each case.

Once it is decided that bail should be granted, it then becomes vital to

carefully determine the amount the amount to be paid, because at times
the amount fixed defeats the whole purpose of bail. Bail should mainly
serve as security for the accused to stand trial or show up for the hearing
without hampering the administration of justice. In matters of bail
pending appeal, bail should be to ensure amongst others that if the
appeal fails, the appellant will submit to his punishment.

It therefore follows that the bail amount should not be fixed at an

excessive amount in the particular circumstances, thus creating an
impression that bail is being refused. An excessive amount of bail can
therefore result in a refusal of bail. In deciding what amount should be
fixed, it is important for the court to take into consideration the means of
the accused, but however this is not the only determining factor, the
likelihood of him standing trial, the likelihood of him submitting to
punishment or the likelihood of him seeking to escape trial or
punishment by absconding are likewise a crucial factors in determining
bail, or bail pending appeal, as per R v Vermeulen.5 Besides if offenders
can be afforded room to escape standing trial, or to escape after
conviction and sentence then it will be of no effect to have a criminal
justice system, because criminals (convicted persons) will not be
punished. -4-
5 1958 (2) SA 326 (T) at 327
Hannah, J with Levy, A.J. agreeing in Johnny Jamason Jacobs v The
State,6 restated the approach to be followed when fixing bail amount,
that the ability of the accused to pay is an important factor to be taken
into account, but it is not the only factor. Factors such as the
seriousness of the offence, the likelihood of the accused to abscond, the
potential strength of the case against him and other factors should also
be considered.

2. BAIL BEFORE FIRST COURT APPEARANCE

The decision of whether or not an accused should be admitted to bail is a

judicial one, which must be made by a court of law. Section 59 of the
Criminal Procedure Act makes provision for a police officer of or above
the rank of a non-commissioned officer to release an accused on bail
before first court appearance in less serious offences, which are offences
other than those listed in Part II or III of Schedule 2, after a sum of
money determined by a police official had been deposited at a police
station.7 This form of bail is generally referred to as police bail.

As will be seen under the heading ‘Urgency of bail applications’ accused

persons have the right to apply for bail at any time, even before their first
court appearance, where police bail have been refused or is not
considered at all. The said police officer must complete and hand to the
accused a recognisance showing receipt of bail money received,

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the offence in respect of which bail granted, the place, date and time of
6 Unreported judgment of the High Court of Namibia, Case No. CA18/99, delivered on 14 May 1999, at
page 5.
7 Section 59(1)(a) of the CPA
the accuser’s trial.8 Thereafter the said police officer must forward a
duplicate original of such recognisance to the clerk of the court having
jurisdiction.9 Such bail, subject to the court adding further conditions
shall remain in force after first court appearance and be treated in the
same way as bail granted by the court in terms of section 60. 10

It should be noted that police bail can only be granted within the
premises of Section 59. The said section does not allow police bail to be
granted with conditions, but only authorises police officers to either
grant or refuse bail, nothing more nothing less.

3. BAIL APPLICATIONS IN COURT

3.1 INTRODUCTION

An accused who is in custody in respect of any offence may apply for bail
to a court having the necessary jurisdiction i.e. a court before which
proceedings are pending, in terms of Section 60 of the Criminal
Procedure Act. A new bail application can also be made in terms of
section 60, where there had been a withdrawal of bail or forfeiture of bail
money. Harms, J in S v Nkosi11, stated that a withdrawal of bail and
forfeiture of bail money in terms of the mandatory provisions of section
67 of the Criminal Procedure Act does not forbid a new application for
bail in terms of section 60.
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It was further stated that the fact that bail was withdrawn, is a relevant

8 Section 59(1)(b) of the CPA

9 Section 59(1)(c) of the CPA
10 Section 59(2) of the CPA
11 1987 (1) SA 581 (T)
factor to be considered in a new bail application. On this subject
Mahomed, AJ in S v Acheson (supra)12 stated as follows: “I am unable to
agree with the suggestion that I am precluded from considering bail for the
accused, merely because the accused was previously unsuccessful in this
court. Each application for bail must be considered in the light of the
circumstances which appear at the time when the application is made. A
judge hearing a new application is entitled, and indeed obliged, to have
regard to all the circumstances which impact on the issue when the new
application is heard.

More than seven months have now elapsed since the accused was first
taken into custody. The court which heard the previous application was
not and could not be aware that the trial could not commence on 18 April
1990 and a further adjournment would be sought by the state. Moreover, it
is no fault of the accused that the trial cannot proceed. He is willing and
able to continue with his defence, having engaged eminent senior and
junior counsel. The prima facie case which the alleged it had, when it
previously opposed bail, may turn out to be very much less than a prima
facie case if the absentee witnesses are not procured.”

What is now clear is that where there had been a bail application before
and the circumstances surrounding that application or the applicant had
now changed, then a new bail application can be justified.

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3.2 URGENCY OF THE APPLICATION

Generally, justice requires that bail be heard as a matter of urgency in

12 at p 19 A-D
order to avoid having accused persons languishing in police custody,
whereas they could be out on bail. Kotze, J in Twayie v Minister of
Law and Order13 set down a principle that a bail application should be
treated as a matter of urgency and that lower courts were under an
obligation to hear bail applications even outside normal court hours and
non-court days.

However, not every bail application is urgent. Hannah, J with Strydom,

JP and Mtambanengwe, AJ agreeing in Graces v Fouche and others14
emphasised that there should be real grounds of urgency present in
order to hear a bail application outside normal court hours.

In Garces’ case (supra), the applicant, a managing director of fishing

company who suffered from a skin disease which is aggravated by stress
and kidney stones which required him to avoid cold and damp
conditions, was arrested on 22nd May 1997 outside normal working
hours by Walvis Bay police on suspicions of having received or possessed
fishing equipments valued at N$4000. An attempt to get police bail by a
colleague and an attorney was unsuccessful. A local magistrate was
contacted and was willing to hear a bail application, but he was of the
view that for such a hearing to occur, a public prosecutor should be
present. Attempts to get a public prosecutor were unsuccessful.

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The Prosecutor-General had earlier instructed public prosecutors that,
unless if they wanted to do so, they do not have to entertain bail
applications after normal court hours. After failing to have the public
prosecutor in attendance, an urgent application was launched with the
13 1986 (2) SA 101 (O); See also: C. Bredenhann v The State, Unreported Judgment of the High Court of
Namibia, delivered on 2 Mat 1997 by Kirkpatrick, A.J. with Gibson, J agreeing.
14 1997 NR 278 (HC) at 285-B
High Court, which was heard late in the evening, and then ordered that
the magistrate‘s court convenes immediately.

At some stage after midnight the magistrate’s court of Walvis Bay

convened and the applicant was released on bail of N$5000. The High
Court further held that an arrested person can bring a bail application
before the 48 hour period has elapsed.

The court further held that such arrested person has the right to apply
for bail not only during normal court hours but also outside normal
court hours. On the question of the necessity of attendance by a public
prosecutor, it was stated that a magistrate’s court can convene without a
public prosecutor present, besides the Prosecutor-General cannot legally
compel a public prosecutor to have an agreement for overtime work, and
without an agreement cannot legally compel a prosecutor to perform
overtime work. It was further stated that if a bail application is so urgent
that it has to be held after hours and the local public prosecutor has
little concern with justice that he declines to attend because it will
amount to overtime which he or she is not prepared to do, then let
justice be done without him or her. The saying is simple “if a public
prosecutor does not want to be part of justice then let justice prevail in
his absence.” The magistrate can ask a police officer for assistance to
provide him or her with facts and the surrounding circumstances of the
case.

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It is in the interest of justice that I now interrupt myself and emphasise

one of the main responsibilities of a prosecutor: that public prosecutor is
an officer of the court who should act in the interest of justice, the state
and the public at all times. It follows therefore that where he/she is in
possession of vital information in determining whether or not to admit
the applicant to bail or dismiss such application, then the interests of
justice requires that the prosecutor should attend the bail hearing and
put such facts before court. A failure to do so will amount to the
prosecutor playing a vital role, if not entirely to blame for the failure of
justice.

3.3 PROCEDURE

3.3.1 MANNER OF HEARING BAIL

The Criminal Procedure Act 51 of 1977 does not stipulate the procedure
to be followed by the court, when entertaining a bail application. Bail
applications are neither civil nor criminal proceedings. Over the years
bail applications have been heard in three different forms, namely:
exparte statements from the bar, applications brought on affidavits and
applications brought by means of viva voce evidence. Both these
procedures have advantages and disadvantages, but it should be
emphasized that case law have shown that it is preferable to have oral
evidence led in bail applications.

(I) BY EXPARTE STATEMENTS FROM THE BAR

The procedure by way of exparte statements from the bar is no doubt an

easy going procedure. Since it is desirable that bail applications should

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be dealt with expeditiously, finding witnesses to testify orally or

preparing affidavits might cause some delay. But that being the case,
Diemont, J in S v Nichas and Another 15
stated as follows:

“It is a notorious fact that in the majority of cases exparte statements are
made both by the defence and by the public prosecutor who intimates
what the police objections are. There are no formalities, no evidence is led,
no affidavits are placed before the court and the record is so meager that
there may be little or nothing to place before the Supreme Court if the
matter is taken on appeal,” this passage was quoted with approval in S v
Pienaar 1992 (1) SACR 178 at 179.

(II) BY WAY OF AFFIDAVITS

In Moekazi and Others v Additional Magistrate, Welkom, and

Another,16 a bail application was brought on affidavits file on the public
prosecutor in terms of section 60 (1) of the CPA. In their application the
applicants stated that they each intended to file and serve affidavits in
support of their application. The affidavits were disallowed by the
presiding magistrate who found that an application for bail can only be
brought by way of affidavits if the state did not oppose the application,
but where the state opposes, then such affidavits cannot be accepted. On
an application, Hattingh, J sitting in a court of a provincial division
stated that he magistrate had no jurisdiction to disallow the affidavits.

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It was further stated that the affidavits once allowed, if the state opposed
the application, then it (the state) should have filed answering affidavits

15 1977 (1) SA 257 (C ) at 260-261. See also S v Maki 199 (2) SACR 630 (E)
16 1990 (2) SACR 212 (O)
or give viva voce evidence to substantiate its opposition.

Botha, J in S v Pienaar stated that courts were not entitled to disallow

affidavits in bail applications, because the Criminal Procedure Act did
not render the use of affidavits impermissible in such applications.
Botha, J further stated that it is obvious that an affidavit will have less
probative value compared to oral evidence which is tested in cross
examination. An affidavit will however carry more weight than a mere
address from the bar.17

(III) VIVA VOCE EVIDENCE

If facts in a bail application are in dispute then it is most advisable that

the application proceeds by way of presenting oral evidence. If full
information, both for and against such application would be presented
under oath before a court of law, then the appeal court will no doubt be
in a better position to determine whether the magistrate was correct or
not in his or her decision. 18 Failure to have evidence under oath placed
on record will mostly be difficult to determine the correctness of the
magistrate’s decision and may prompt the appeal court to require more
material from the magistrate, thus delaying the whole process.

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It was held by Southwood, J in S v Hartslief19 that an accused person

who applies for bail can do so way of exparte statements from the bar
and/or by way of sworn statements and/or by oral evidence. It should
however be encouraged that viva voce evidence should be led by
17 at page 180-H
18 See: S v Smith and Another 1969 (4) SA 175 (N) at 178.
19 2002 (1) SACR 7 (T)
prosecutors where the state opposes the release of the accused on bail,
or intends to add a certain condition to bail. Where the applicant in a
bail application testify, the state should cross examine him/her in order
to elicit evidence that he intends to frustrate the cause of justice, either
by absconding, interfering with witnesses and /or police investigation or
otherwise.

3.3.2 PROPER BAIL INQUIRY

It is settled law that in determining the question of bail there should be a

proper bail inquiry. Amongst other authorities, Section 3 of the
Criminal Procedure amendment Act, Act No. 5 of 1991 stipulates
that: “the court may…refuse the application if in the opinion of the court,
after such inquiry as it deems necessary, it is in the interest of justice or
the administration of justice…”.

In Solomon Hlalele and Two Others v The State, 20 three appellants

brought a bail application in the Katima Mulilo magistrate’s court.
They were to face charges of dealing in, alternatively possession of 6595
mandrax tablets with a street value of N$200 000.
The state prosecutor indicated that the state would not object to bail

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being granted to the second and third appellants, but only to the first
appellant. All the appellants and the investigator testified, after which
the court refused bail relying on Section 61of the Criminal Procedure Act.
It is against this decision that the appeal was brought.

20 Unreported judgment of the High Court of Namibia, delivered on 04 December 1995 by Hannah, J with
Teek, J concurring.
Very little facts were placed on record and this prompted the appeal
court to emphasise that, it is the primary duty of both the state and the
applicant’s counsel to lay a proper factual basis on which the court can
decide the question of bail. If however, this is not done then the court
itself should play a leading role and conduct an inquiry into the matter.

Hannah, J pointed out that vital matters which were not covered,
include amongst others, the following: “Do the appellants intend to plead
not guilty at the trial? When is it alleged the offence was committed? Have
the police investigations been completed and, if not, when will they be
completed? What were the circumstances in which the appellants were
found in possession of the drugs? do these circumstances suggest that the
appellants are professional dealers in drugs? Do any of the appellants
have previous convictions for drugs or any other offences? Can the
appellants raise any money using their houses as security? What were
they doing at Katima Mulilo at the time of their arrest? Did they have any
legitimate reason for being there?”21

It was however not a ground of appeal that the court a quo failed to
conduct a proper bail inquiry, therefore the appeal could not be decided
on that. The court eventually dismissed the appeal.

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In the matter of The State v Barend Gariseb,22 the appellant who faced
charges of murder and possession of a fire-arm without a licence brought
an application for bail in Gobabis magistrate’s court. The court was
informed that the appellant could pay N$2000 and that certain
conditions should be imposed. The only other information which the
court had was the charge sheet which contained an allegation that the
21 at page 4.
22 Unreported judgment of the High Court of Namibia, delivered on 26 April 1995 by Strydom, J.P. with
Hannah, J agreeing.
appellant killed the deceased by shooting her with a pistol. This
application was not opposed by the public prosecutor. The court refused
bail on the grounds of the interest of the public and the administration of
justice, the nature of the offence committed, the seriousness of the
offence, the manner in which the offence was committed, and the
instrument used.

Strydom, J.P. (as he then was) stated that: “issues such as the
seriousness of the offence, the manner in which it was committed, the
public interest and interest of the administration of justice can only be
determined after a proper inquiry was held by the court and the discretion
is properly exercised on evidence put before it.”23 The magistrate’s refusal
of bail was set aside, for not having conducted a proper bail inquiry and
the matter was referred back to the court a quo for a proper inquiry to be
held.

The appeal court further mentioned that where the court relies on the
amendment of section 61, then evidence will be necessary, and in this
case the prosecutor did not oppose bail, but still the court was not

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satisfied that bail should be granted, therefore the proper procedure
should have been for the magistrate to call for the necessary evidence, as
was also stated in T.M. Sibanyona v The State, unreported judgment of
the High Court of Namibia, delivered on 21 December 1993.

In the matter of The State v Dean Arnold Freygang and Another,24 A

bail application was brought in the magistrate’s court of Rehoboth. The
23 at page 2
24 Unreported judgment of the High Court of Namibia, delivered on 08 August 1997 by Strydom, J.P. with
Karuaihe, A.J. concurring.
two respondents being accused 3 and 4 in the bail application facing the
charge of rape, testified in support of their application, however the state
did not tender evidence despite stating that they opposed bail. What
transpired is that after the respondents have testified, the state intended
to call the investigator to testify in respect of the opposition to bail.

The investigator was present in court, but when the public prosecutor
wanted to call him he was not present. The court therefore allowed the
prosecutor only three minutes to trace his witness and have him in
court.

When the court resumed, the prosecutor mentioned that he could not
find his witness and had no other alternative than to close the state’s
case. Consequently, the respondents were released on warning, despite
having tendered to pay an amount for bail. It should also be mentioned
that the magistrate in his judgment stated that the investigator was
again present in court some 15 minutes after the prosecutor had closed
the state‘s case.

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The Prosecutor-General appealed against such decision in terms of

Section 310(1) of Act 51 of 1977 as amended on several grounds, inter
alia that there was no proper bail inquiry. The appeal court found that it
was clear that the magistrate concluded that the witness was not really
interested in opposing bail, that is why he was not present when his
evidence was needed and therefore held it against the state. The court
further mentioned that the presiding magistrate had a misconception of
the role of a presiding officer in bail applications. From the facts of this
matter, it is clear that it is the state which opposed bail (and not
necessarily the investigating officer), but the magistrate took it that it
was the investigator who opposed bail and the public prosecutor was
only his agent who would oppose bail on his behalf.

The state was punished because it was not given enough time to call its
witness, consequently the appeal court held that there was no proper
inquiry, therefore the appeal was upheld, the warning was set aside and
the matter was referred back to the court a quo for a proper bail inquiry.

It was mentioned by Levy, AJ in Jose Kambungura and Another v The

State,25 that in bail applications for a court to refuse bail, there must be
credible evidence placed before it, showing a reasonable prospect that
the accused will not stand trial or that the accused will interfere with
witnesses or will in any other manner frustrate the cause of justice. From
the above it is clear that a proper inquiry is one where the normal rules
of justice are observed and is conducted in a fair and just manner.

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3.4 ONUS OF PROOF

Over the years it had been established that the applicant (accused) bears
the onus of proof in a bail application. 26 He/she should convince the
court on a balance of probabilities that he/she should be admitted to
bail.27 Such onus goes further in that the accused must satisfy the court

25 Unreported judgment of the High Court of Namibia, delivered on 5 December 2001, at page 2.
26 See: R v Mtatsala and Another 1948 (2) SA 585(E) 592
27 See: Paul Edward Doyle v The State, Unreported Judgment of the High court Of Namibia, delivered on
29 March 1996 by Mtambanengwe, J with Gibson, J concurring, at page 7. See also: Abraham
Brown v The State, Unreported Judgment of the High Court of Namibia, delivered by Damaseb,
A.J. with Silungwe, J agreeing, at page 15.
that, if he is released on bail he will not abscond, tamper with state
witnesses and/or police investigation and will not interfere with the
administration of justice.28

Howard, J in S v Hlongwa29 quoted the following passage with approval

from S v Smith and Another 1969 (4) SA 175 (N) at 177 E-F: “the court
will always grant bail where possible, and will lean in favour of, and not
against, the liberty of the subject, provided that it is clear that the interests
of justice will not be prejudiced thereby.”

Howard, J went further and stated that: “The accused bears the onus of
proving-on a balance of probabilities-that if bail is granted the interests of
justice will not be prejudiced by his absconding or tampering with state
witnesses. He will have failed to discharge such onus if on all the
evidence, there is a reasonable possibility that he will tamper with one or
more state witnesses if he were released. The accuser’s past record,
particularly if it includes a conviction for defeating or attempt to defeat the

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ends of justice by tampering with state witnesses, is clearly relevant in
this connection. And, depending on the circumstances, the court may rely
also on the investigating officer’s opinion that the accused will interfere
with state witnesses if released on bail, even though his opinion is
unsupported by direct evidence.”

The above-mentioned and often quoted passage from S v Smith and

Another was also reiterated with approval in our High Court by
Strydom, JP with Mtambanengwe, J concurring in Axaro Tsowaseb
and Another v The State,30 where the court re-emphasized the principle
28 See: De Jager v Attorney-General, Natal, and Another 1967 (4) SA 143 (D) 149.
29 1979 (4) SA 112 (D) 113
30 Unreported judgment delivered on 04 December 1996, Case No. CA 88/96,at page 7-8.
that applicants in bail applications bears the onus to prove on a balance
of probabilities that the court should in exercising its discretion admit
them to bail. An applicant will discharge such onus if it is shown that the
interests of justice will not be prejudiced by releasing him on bail and
that it is likely that he will stand his trial and that he will not interfere
with state witnesses or investigation of a case against him.

The fact that the applicant bears the onus of proof does not mean that
the state should take a backseat where it opinion that the applicant had
not discharged its duty. The public prosecutor should still, and indeed
he/she is obliged by the call of justice to place evidence before court in
support of the state’s contention or opposition (if the state opposes bail).
This should be adhered to, because it is the court that has to decide
whether or not the applicant has discharged his/her onus and it can
only do so after hearing all the evidence presented by both parties
involved. Prosecutors are therefore encouraged to be actively involved in
the whole process of bail.
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3.5 NEW FACTS IN A SUBSEQUENT BAIL APPLICATION

It is settled law that once a bail application is heard and concluded,

there can be no new bail hearing in the same court on the same facts,
unless new facts exist. If accused persons could be allowed to bring new
bail applications on the same facts where bail had been previously
refused, then it would amount to an abuse of the process. It follows
therefore that evidence or facts which is available at a bail application
but not placed on record (disposed) cannot be used in a later bail
application as new facts. See: S v Le Roux and others 1995 (2) SACR
613 (W) 622A-C.
4. EVIDENTIAL RULES IN BAIL APPLICATIONS

4.1 HEARSAY EVIDENCE

It is common knowledge that in bail applications rules of evidence are

relaxed. Even hearsay evidence is admissible in such proceedings, and
the court can in some instances rely on such evidence.31

In S v Kantor,32 the court relied on hearsay evidence in withdrawing the

respondent’s bail. In Maqungu v Assistant Magistrate, Whittlesea,33
the magistrate cancelled the applicant’s bail on the basis of hearsay
evidence that he was going to abscond. On appeal the court overturned
the magistrate’s decision because the evidence was unsatisfactory.

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When one compares the two matters it becomes clear that in Kantor’s
case the court relied of hearsay evidence because it was supplemented by
assurances from a senior police officer and the Assistant Attorney-
General that they had investigated such information and that it was both
proper and reliable. Whereas, in Maqungu’s case the appeal court was
not satisfied with the hearsay evidence on record, in that, the witness
who was a junior police officer did not strongly vouch for the accuracy of
the information he testified about. This shows that when there is real
evidence, hearsay evidence must be avoided at all cost, because although
such evidence is admissible, its value cannot be guaranteed. Obviously
real evidence will carry more weight than hearsay.

4.2 OPINION EVIDENCE

31 S v Maharaj and Another, 1976 (3) SA 205 (D) at 208 (F).
32 1964 (3) SA 377 (W)
33 1977 (2) SA 359 (EC)
It is settled law some weight has to be attached to the opinion of the
investigator in bail proceedings. Such weight will however depend on the
circumstances of each case.34 Courts must be careful not to allow the
investigator to take over its roll. An opinion of the investigator would only
be necessary if it can assist the court in making its decision.

The investigator should therefore inform the court, the reasons why and
how the further detention of the accused will assist him in the
completion of his investigation. He will also have to indicate the reasons
why his investigation had not been completed.

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4.3 BAIL PROCEEDINGS AT THE SUBSEQUENT TRIAL

The record of bail proceedings is admissible at a subsequent trial,

provided that the accused had been warned of his rights, in particular
the right not to incriminate himself. It is also important to inform the
accused before evidence is led in bail proceedings that, the record of
proceedings may be used at a subsequent trial. In this regard, see: S v
Mqubasi and Another 1993 (1) SACR 198 (S).

5. RISKS AND ISSUES TO BE CONSIDERED IN BAIL HEARINGS

5.1 THE RISK OF ABSCONDING

When determining whether there is a likelihood of the accused to

34 See: Paul Edward Doyle v The State (supra) at page 9.
abscond, Mahomed, AJ in S v Acheson (supra),35 spelled out the
factors to be considered as follows:

“(a) how deep are his emotional, occupational and family roots within the
country where he is to stand trial?
(b) what are his assets in that country?
(c ) what are the means that he has to flee the country?
(d) how much can he afford the forfeiture of the bail money?
(e) what travel documents he has to enable him to leave the country?
(f) what arrangements exist or may later exist to extradite him if he flees to
another country?
(g) how inherently serious is the offence in respect of which he is charged?

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(h) how strong is the case against him and how much inducement there
would therefore be for him to avoid standing trial?
(i) how severe is the punishment likely to be if he is found guilty?
(j) how stringent are the conditions of his bail and how difficult would it be
for him to evade effective policing of his movements?”

The above quotation was cited with approval by Maritz, J in Mylene

Swinepoel v The State.36 See also: Shephard Khowa and Others v
The State,37 and Jan Otto Karel Labuschagne v The State.38

Hannah, J in Jeannette Marietha Von Solms and Another v

35 at page 19-20.
36 Unreported judgment of the High Court of Namibia, delivered on 30 June 2004.
37 Unreported judgment of the High court of Namibia, delivered on 19 September 1994, by Frank, J with
Hannah, J concurring.
38 Unreported judgment of the High Court of Namibia, delivered on 13 November 1998, by Gibson, J with
Hannah, J concurring.
Magistrate P Nangula N.O. and Another, 39 discussed the risk of
absconding and outlined that when a reasonable possibility exists that
an accused will abscond then there is a real risk that the accused will
abscond. The court should not take such a risk when the accused is
charged with a serious crime and where there is a strong case against
him/her. Hannah, J in Peter Hendrick Spangenberg v The State, 40
pointed out that an accused person who is facing a strong case when
Facing a serious charge and while being aware of the magnitude of the
case he is facing, is likely to abscond than one who is facing a weak case
and will probably be acquitted.

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5.2 INTERFERENCE WITH STATE WITNESSES AND/OR POLICE

INVESTIGATION

In Cornelius Stephanus Jacobs Theron v The State,41 the appellant

was refused bail in the Magistrate’s court of Swakopmund on the ground
that investigation was not completed, this was the ruling even though
the prosecutor and the investigator did not oppose bail. They suggested
that bail of N$5 000 should be granted. On appeal, the court held that,
the fact that investigation is incomplete only becomes relevant in bail
proceedings if there is indeed a fear or risk that the accused will hamper
the investigation, by destroying or concealing evidence or interfering with
state witnesses. The magistrate’s decision was set aside and bail was

39 Unreported judgment of the High Court of Namibia, delivered on 6 September 1996 by Hannah, J with
Strydom, J.P. concurring, at page 6. See also Elias Kevera v The State, Unreported judgment of the
High Court of Namibia delivered by Hannah, J with Teek, J concurring.
40 Unrepored judgment of the High Court of Namibia, delivered on 1 July 2004, at page 4.
41 Unreported judgment of the High Court of Namibia, delivered on 25 April 1997 by Hannah, J with
Strydom, JP agreeing.
granted to the appellant.42

Mahomed, AJ in Acheson’s case (supra)43 outlined issues which must

be considered in determining whether there is a reasonable possibility
that the accused, once released on bail will interfere with witnesses or
investigation, these are:

“(a) whether or not he is aware of the identity of such witnesses or the

nature of such evidence;
(b) whether or not the witnesses concerned have already made their
statements and committed themselves to give evidence or whether it
is still the subject matter of continuing investigations;

-24-

(c ) what the accuser’s relationship is with such witnesses and whether

or not it is likely that they may be influenced or intimidated by him;
(d) whether or not any condition preventing communication between
such witnesses and the accused can effectively be policed.”

In alleging interference with state witnesses, the investigator should

mention who these witnesses are (if this will not prejudice the ends of the
justice), if statements were obtained from them, and if not why not, and
should also indicate as to how the accused possibly would interfere with
witnesses and whether he/she had attempted to do so before either in th
matter at hand or any other matter before.

5.3 THE RISK OF COMMITTING FURTHER OFFENCES AND

ENDANGERING THE MAINTANANCE OF LAW AND ORDER OR

42 at page 3.
43 at page 20.
PUBLIC SAFETY OR NATIONAL SECURITY

Bail can be refused if it can be shown that the accused has a tendency of
committing crimes, this is so because the society needs to be protected.
In S v Patel,44 it was held that bail can be refused on the ground that the
safety of the state will be endangered. In order to prove that an accused
has a propensity to commit crimes various factors becomes crucial, inter
alia, his previous records, especially those of the offences committed
while on bail and those of defeating or attempt to defeat the cause of
justice. There is therefore nothing prohibiting records of previous
convictions and even pending charges against the same accused from
being handed to court to form part of evidence in bail applications
with the aim of persuading the court to refuse bail or even granting bail

-25-
to that matter. There is nothing preventing records of previous
convictions from being produced in bail applications. The state can also
lead evidence to show that the accused has other pending cases.

As far as public safety or national security is concerned, see: S v

Ramgobin 1985 (4) SA 130 (N); S v Nangutuala 1973 (4) SA 460
(SWA) and S v Moeti 1991 SACR 462.

5.4 PUBLIC INTEREST AND THE ADMINISTRATION OF JUSTICE

The Criminal Procedure amendment Act, 5 of 1991 offered our courts

wider powers in determining whether or not to grant bail to an accused.
It provides that: “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
44 1970 (3) SA 565 (W) 568.
satisfied that it is unlikely that the accused, if released on bail, will
abscond or interfere with any witnesses 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.”45

In Solomon Hlalele and two others v The State (supra), Hannah, J in

his dictum stated as follows: “It is not a ground of the appellants’ appeal
that the magistrate himself failed to conduct a proper enquiry into the
matter before him and the appeal cannot therefore be determined on that
basis. It must be determined on the material laid before the court a quo

-26-

and what emerges from that is that the appellants were found in
possession of a large quantity of dependence-producing drugs for which,
in all probability, a substantial sentence of imprisonment will be imposed
if they are convicted. That fact alone was, in my opinion, sufficient to
permit the magistrate to form the opinion that it will not be in the
interests of either the public or the administration of justice to release
the appellants on bail, particularly in a case where apparently the police
investigations into the matter had not yet been completed.” 46

The above-mentioned passage was cited with approval by

Mtambanengwe, J with Teek, J agreeing in Pieter Lodewikus
Vermeulen v The State.47 The said Section 60 requires its application
only after an enquiry in terms thereof had been conducted, meaning
there should be evidence placed before court, for the court to invoke that
45 Section 3 of Act 5 of 1991.
46 at page 4-5
47 Unreported judgment of the High Court of Namibia, delivered on 14 May 1996, at pages 2 and 5.
section.

In S v Timotheus48, three accused persons were charged with the

offence of theft of a motor vehicle and cash of N$60 000. Each of them
was granted bail with conditions on 22 February 1995. Subsequent to
that, on the same day Timotheus was re-arrested for bribery, in that he
allegedly offered N$300.00 to a certain Sergeant Eiman of the Namibian
Police in exchange for Sgt Eiman to hand the case docket and its content
on the theft case to him. It is against this bribery charge that the

-27-

accused applied for bail, which application was refused by the court in
accordance with the provisions of Act 5 of 1991. On 14 March 1995 the
accused brought a further bail application which was again refused.

On appeal the High Court found that Act 5 of 1991 was enacted to
combat the very serious escalation of crime and accused absconding or
tempering with police investigation by affording the courts wider powers
to refuse bail in serious crimes and offences listed in Part IV of Schedule
two. It was further held that the court was entitled to refuse bail, even
where there was just a reasonable possibility that the accused will
interfere with state witnesses or police investigation.
In this matter, Teek, J with Mtambanengwe, J concurring found that the
allegations went further in that the accused tried to interfere with state
witnesses and police investigation, consequently dismissed the appeal. 49

The words ‘interest of the administration of justice’ are not easy to define,
as the court recognised in S v Du Plessis (supra). That court further

48 1995 NR 109 (HC), See also S v Du Plessis and Another 1992 NR 74 (HC)
49 S v Timotheus (supra) at 113-114. See also S v Du Plessis (supra) at 82
stated that the administration of justice will include a situation where
there is a strong prima facie case made out against the accused, charged
with a serious crime and the court or magistrate is convinced that there
is no more than a reasonable possibility that the accused will abscond.

The said passage had been cited with approval in a number of other
cases, inter alia Jeanette Marietha Von Solms and Another v
Magistrate Peter Nangula, N.O. and Another, (supra), and Josef Josef
Kangamena and another v The State, unreported judgment of the
High Court of Namibia, delivered on 22 July 2004 by Damaseb, AJ
with Maritz, J agreeing.
-28-

Public interest is equally not easy to define. O’Linn, J in Charlotte

Helena Botha v The State,50 while discussing public interest outlined
that when accused person is alleged to be dangerous, or having
committed brutal and callous murder(s) or robbery using dangerous
weapons or rape where serious injuries were inflicted or where a small
child had been raped or where the accused is a habitual criminal or
where he has a personality of being violent, dangerous and
uncontrollable without warning and at slight provocation, his release
creates a legitimate fear in the victims’ minds even if there is no proof
that, that would occur.

It may be created in the minds of the public that the police, the courts
and the state is unable and unwilling to protect them. This fear has
become real especially that the state is compelled to disclose case
dockets including witness statements to the accused. The public will
thus fear that they are not safe because they might become victims of the
50 Unreported judgment of the High Court of Namibia, delivered on 20/10/1995, at page 23.
same accused.

The public needs to be protected and not to be exposed to such dangers

and risks and the said perceptions should be avoided by considering all
factors in bail proceedings provided that the relevant facts are placed
before the judicial officer. It should be noted that when one refers to
serious offences, it is not referred to a label placed by the police to such
an offence, we are referring to an offence which is in substance, such an
offence. For example, the police may investigate a murder case, whereas

-29-

in truth and in fact, death occurred accidentally or such killing occurred

out of self-defence.

In a bail application, the substance behind the label should be prima

facie established. In some instances where for example one is charged
with murder but the person who killed another did not in fact commit a
crime, the interests of the public and the administration of justice will
operate in favour of such accused. See also the case of S v Lang,51
quoted with approval by O’Linn, J in Botha v The State (supra) at page
26- 28.

In respect of the seriousness of the offence during bail applications,

Levy, AJ in Kambungura’s case (supra)52 sated that: “The seriousness
of the offence in itself has no relevance to the ultimate question of bail. If
it did, custody pending trial will be a form of anticipatory punishment
which is not permissible.”

51 Omaruru Magistrate’s Court, Case No. 395/95, 21/09/95 by H. Salionga.

52 at page 4.
This passage had been misunderstood by many to mean that where
prima facie evidence regarding the commission of a serious offence had
been placed on record, then the seriousness of the offence is irrelevant in
deciding whether or not to grant bail. In clearing the said
misunderstanding Maritz, J in Hans Jurgen Koch v The State, 53
mentioned that “where the court referred to ‘the seriousness of the
offence’, it referred to what was earlier referred to in the Botha case by
the Honourable Mr Justice O’Linn to the “label” attached to a particular
crime.
-30-

The court did not in Kambungura’s case suggest that if prima facie
evidence of the commission of a serious offence has been adduced in the
course of bail proceedings, the seriousness of the offence is nevertheless
an irrelevant factor in deciding whether or not bail should be granted or
not.” This is commended because Levy, J in Kambungura’s case (supra),
further remarked that: “The seriousness is certainly a factor where
conviction could lead to a heavy penalty and escape may be an option.” 54

5.5 OTHER CONSIDERATIONS

Another factor which must be considered in bail proceedings is how

prejudicial it might be for the accused to continue being kept in custody
by being denied bail. In this regard Maritz, J in Mylene Swinepoel v
The State (supra)55 cited with approval the following issues to be
considered, as laid down by Mahomed, AJ in S v Acheson (supra)56:

“(a) the duration of the period for which he has already been

53 Unreported judgment of the High Court of Namibia, delivered on 30 December 2002, at page 9.
54 at page 4.
55 at page 6-7.
56 at page 20.
 incarcerated, if any;
(b) the duration of the period during which he will have to be in custody
before his trial is completed;
(c ) the cause of any delay in the completion of his trial and whether or
not the accused is partially or wholly to be blamed for such delay;
(d) the extent to which the accused needs to continue working in order
to meet his financial obligations;

-31-

(e) the extent to which he might be prejudiced in engaging legal

assistance for his defence and in effectively preparing for his defence
if he remains in custody;
(f) the health of the accused.”

6. BAIL CONDITIONS

Bail conditions are covered in Section 62-63 of the Criminal Procedure

Act. Section 62 is of great importance, especially to the prosecutor
because is provides that any court shall on the application of the
prosecutor, add any further condition to the bail which is or was granted,
in respect of reporting, any place where the accused is forbidden,
communication with state witnesses, place to which any document may
be served on him, any condition which will ensure that the
administration of justice is not jeopardized and/or condition placing the
accused under the supervision of a probation officer or correctional
officer.

Bail conditions should be clear and not ambiguous. Conditions should

not be contra bonos mores. This has been debated in a number of
situations, for example a society’s morals expects communication
between a husband and his wife, but a condition prohibiting such
communication, where the wife is a complainant in a case where the
husband is accused of raping her, can be a proper one.
At any time the court can amend a bail condition on an application by
the prosecutor or the accused. The court can also increase or reduce the
amount of bail, in terms of section 63. This however is different from
section 68 which deals with cancellation of bail. Section 68 is discussed
in detail hereunder.
-32-

7. PAYMENT OF BAIL

Payment of bail is provided for in section 69 of the CPA. The said section
provides that any person including a third party may pay bail for the
accused. An attorney is not suppose to pay bail for his client (the
accused) because that would amount to unethical behaviour and besides
the purpose of bail should be to place the accused in a position where he
would be forced to come to court in fear of risking the forfeiture of his
money.

8. CANCELLATION OF BAIL AND FORFEITURE OF BAIL MONEY

8.1 FAILURE BY THE ACCUSED TO OBSERVE BAIL CONDITIONS

When the prosecutor brings an application to court on the ground that

the accused has failed to comply with his bail condition, it is important
that the prosecutor alerts the court on the provisions of section 66 of the
CPA. The prosecutor after presenting evidence in that regard, an
opportunity should be given to the accused to state his case and he shall
have the burden of proving on a balance of probabilities that his failure
to comply with the condition was not due to his fault, in order for the
court not to withdraw his bail and forfeit it to the state.

If the said application by the prosecutor is made in the absence of the

accused, then a warrant of arrest may be issued in order to bring the
accused to answer on his failure to comply with the condition. If he
denies, then the court can proceed to hear evidence in that regard.

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8.2 FAILURE BY THE ACCUSED TO APPEAR

Cancellation of bail money on account of failure to appear in court is

provided for in Section 67 of the CPA. When an accused fails to appear at
the place, date and time where he proceedings were adjourned to or
appointed for his trial or fails to remain in attendance thereon, the court
must provisionally cancel his bail, provisionally declare his bail money
forfeited to the state and issue a warrant for his arrest.

If the accused does not appear within fourteen days thereafter, then the
provisional orders made earlier shall become final. But if he appears and
convinces the court that his failure to appear was not due to fault on his
part then the provisional orders made against him lapses. When an
accused failed to appear in court and the elements of the offence of
contempt of court are covered he may be convicted as such.

8.3 ACCUSED ABOUT TO ABSCOND

In S v Kantor (supra), bail was cancelled after evidence was laid that the
accused who was on bail was about to abscond. It is recommended that
something more than just an allegation should be done. In Kantor’s case
an investigation was carried out to verify the information by a senior
police officer and the Assistant Attorney-General who assured the court
of the reliability of such information.
In S v Maqungu, however, it appeared that there was nothing much
done by the police constable who testified to verify his information that
the appellant was about to abscond and such evidence was not to be
enough to cancel his bail. That is so because when he was cross
examined by the first appellant, he replied that: “it is just the information
I received that

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you are going to run away”, following that the appeal court mentioned
that it was as much as saying “I don’t know whether that information is
true or not, I am just telling you what I heard.” 57

In Jeanette Marietha Von Solms and Another v Magistrate P.

Nangula, N.O. and Another (supra), the two applicants were released on
bail pending trial while facing the charge of murder in the magistrates
court of Okahandja. Just over two months after bail was granted, the
state successfully applied for the applicants’ bail to be cancelled.

The applicants then applied to the High Court for review to have the
cancellation of their bail set aside. During the original bail application it
was common cause that the state had a strong murder case against the
applicants, it was also not disputed that the applicants had premeditated
57 at page 361D.
the murder. Hannah, J then observed that the applicants, if convicted
would probably be sentenced to long terms of imprisonment and
therefore the temptations of not standing trial would be considerable. 58

At the application of the cancellation for their bail, the investigator

alleged inter alia that both applicants have resigned from their jobs, that
the first applicant placed her house on sale and had a second passport
which she was not handed to the police, that the police reporting register
was only checked twice a month. A number of the allegations leveled
against the applicants were not disputed.

-35-

The honorable judge Hannah, bearing in mind the above-mentioned

provisions of section 61 (as amended), further stated that the magistrate
had a discretion, even if he was not convinced that the applicants were
about to evade justice or abscond, as long as he was of the opinion
properly based on the material before him, that it was in interest of the
public or the administration of justice to cancel their bail he could do
so.59 The High Court on review dismissed the said application.

8.4 OTHER CASES WHERE BAIL MAY BE CANCELLED

The issue of cancellation of bail is provided for in Section 68 of the

Criminal Procedure Act 51 of 1977, as amended. The said Section 68
reads:

“1) Any court before which a charge is pending in respect of which the

58 at page 2.
59 at page 5.
 accused had been released on bail may, upon information on oath
that the accused is about to evade justice or is about to abscond in
order to evade justice, issue a warrant for the arrest of the accused
and make such order as it may seem proper, including an order that
the bail be cancelled and that the accused be committed to prison
until the conclusion of the relevant criminal proceedings.
2)
3) The provisions of this section shall not be construed as preventing any
court or magistrate, as the case may be, to cancel bail and commit an
accused to prison where the accused was released on bail in respect of
any offence contemplated in section 61, if, notwithstanding that such
accused is about to evade justice or to abscond, it is in the opinion of

-36-

such court or such magistrate, as the case may be, in the interest
of the public or the administration of justice that the accused be
placed in custody.”

The onus of proof here is on the state to satisfy the court on the balance
of probabilities that bail should be cancelled. Bail may also be cancelled
by the accused himself. This normally occurs where he is in custody on
another offence (s) or when he is sentenced.

8.5 FORFEITURE AND REMISSION OF BAIL MONEY

Section 70 of the CPA provides that the minister of justice or someone

acting in his/her position may remit the whole or part of the money
forfeited in terms of section 66 or 67 of the CPA. After forfeiture,
proceedings should not be abandoned with perhaps an idea that the
state will benefit from the forfeited money, this should be viewed as a
different matter and proceedings should continue accordingly.

9. OTHER FORMS OF RELEASE

In cases of juveniles, being persons under the age of eighteen years, the
court or a police officer may place an accused in a place of safety, as
defined in section 1 of The Child Care Act 74 of 1983, or place him under
the supervision of a probation officer or a correctional official pending his
appearance or further appearance before a court of law, in respect of the
offence in question. In terms of section 72, however stipulates that the

-37-

court or a police official may release an accused on warning provided he

has to appear before a certain court at a specified date and time. This
procedure is followed in cases involving less serious offences, where there
is no risk of the accused absconding or evading justice. The said section
also provides for cancellation of the warning, the grounds are similar to
those in section 68.

10. BAIL PENDING APPEAL

At times, defence lawyers stand up and apply for bail immediately after
an accused is sentenced without any notice of appeal being filed or
without viva voce specifying clearly the grounds on which the judicial
officer‘s judgment is attacked. Such practices should be discouraged in
any possible manner.

In Constansius Dausab v The State,60 the appellant was sentenced to

60 Unreported judgment of the High Court of Namibia, Case No. CA28/98, delivered on 11 May 1998.
seven (7) years imprisonment of which two (2) years were suspended for
three (3) years. Immediately after the passing of the sentence the
appellant’s legal counsel stood up and stated as follows “As the court
pleases, your worship. At this stage I have instructions to appeal this
matter. Consequently, your worship, I request this court to grant bail as
I have already indicated that the accused have fixed property, is a
Namibian citizen and as he stated in the document, J15. Consequently,
your worship, I request the court to set bail in this regard, pending the
outcome of the appeal.” Bail was refused and on appeal the Appellate
Court went on dismiss the appeal against such refusal of bail.

-38-

The Appellate Court further stated that bail should not be granted upon
its mere application. In casu no grounds of appeal were placed before the
magistrate while it trite law that clear grounds of appeal should be spelt
out in a notice of application for leave to appeal.

O’Linn, A.J. with Teek, J concurring in Seth Kaimu v The State,61

held that such procedure does not inform the judicial officer as to how
his findings are being attacked and therefore cannot properly consider
whether there are any reasonable prospects of success of appeal. O’Linn,
J went further at page 3 and emphasized that “the right of appeal in the
magistrate’s court only arises when a proper notice of appeal setting out
fully the grounds of appeal, has been filed. Before that is done, there is
legally no appeal pending. An application for bail pending appeal should
therefore not be entertained prior to the filing of such a notice of appeal.”

In case of bail pending appeal against conviction or sentence or both,

61 Unreported judgment of the High Court of Namibia, Case No. CA 52/98 &13/98, delivered on 05
August 1998, at page 2.
the important factors to be taken into consideration are whether there
are any reasonable prospects of success on appeal and whether if so
released there is a likelihood of the appellant to abscond. 62 In Willy Class
v The State (supra)63Strydom, J.P. dealt with the factor of the likelihood
of the appellant absconding if granted bail pending appeal. In this matter
the appellant who was convicted of dealing in 2010 mandrax tablets was
sentenced to five years imprisonment of which one

-39-

year was suspended. During the trial the appellant was at all times on
bail and attended each hearing, he also stated that his family was in
Namibia. Strydom, J.P. further stated that while probabilities favored the
appellant, the fact remains that the appellant was convicted of a serious
crime which is abhorred by the community, and there will always be
temptation to try and avoid imprisonment, especially where there is a
long term of imprisonment.

Besides many cases have showed that it is easy for offenders to abscond
to South Africa even without a passport. In an appeal against sentence
for example, reasonable prospects of success will be said to be present if,
a sentence other than imprisonment will be imposed, or that it will be
changed to a wholly suspended sentence, or that it will be reduced to an
extent that, should the accused start or continue to serve his sentence
then he will be prejudiced. However, if such prospects are not present
then the refusal of bail will be justified.64

62 See: S v Williams 1981 (1) SA 1170. See also: Absatho Thomas v The State, Unreported judgment of
the High Court of Namibia, Case No. 63/97, delivered on 08 September 1997; and Willy Class v The
State, Unreported judgment of the High Court of Namibia, Case No. 71/98, delivered on 14 December
1998.
63 at page 4-5
64 S v Beer 1986 (2) SA 307 (SE); See also C. Bredenhann v The State (supra) at page 6-7.
Marais, J in S v Anderson65 stated that if a possibility exists that the
appeal court will interfere with the sentence to such an extent that the
appellant may not even go to prison, then refusal to grant him/her bail
would result in rendering his right to appeal nugatory. This passage
found approval in S v Naidoo 1996 (2) SACR 250 (W) 251-252. In
Anderson’s case (supra) it was also held that if there is no risk of an
accused absconding then the court should lean in favour of granting him
bail.

-40-
Compare the said matter with matter with one of Albertus Jakobus
Hanekom v The State.66 In Albertus Jacobus Hanekom’s case (supra),
the appellant was convicted of rape in the Regional Court and
subsequently sentenced to seven years imprisonment of which one year
was suspended. He filed a notice of appeal against conviction, after
which he unsuccessfully applied for bail pending appeal. He therefore
appealed against such refusal of bail.

On appeal Mainga, J clearly stated that the applicant was convicted of a

very serious crime. Circumstances of the applicant changed and cannot
be similar to the situation before and during the trial in the court a quo
and there exists a possibility that temptation to abscond is greater, 67
resultantly the appeal was dismissed. The honorable judge went further
and cited with approval the following passage, regarding a bail
application after conviction pending appeal, by Fieldsend CJ in S v
Williams (supra):68

65 1991 (1) SACR 525 (C ) at 527-527

66 Unreported judgment of the High Court of Namibia, delivered on 7 February 2000 by Mainga, J with
Hannah, J concurring.
67 at page 2.
68 at 1172H-1173B
“Different considerations do, of course, arise in granting bail after
conviction from those relevant in the granting of bail pending trial. On
the authorities that I have been able to find it seems that it is putting too
highly to say that before bail can be granted on an applicant on appeal
against conviction there must always be a reasonable prospect of success
on appeal. On the other hand even where there is a reasonable prospect
of success on appeal bail may be refused in serious cases
notwithstanding that there is little danger of an applicant absconding.

-41-

Such case as R v Milne and Erleigh 1959 (4) SA 601 (W) and R v
Mthembu 1961 (3) SA 468 (D) stress the discretion that lies with the
judge and indicate that the proper approach should be towards allowing
liberty to persons where that can be done without any danger to the
administration of justice. In my view, to apply this test properly it is
necessary to put in the balance both the likelihood of the applicant
absconding and the prospects of success. Clearly, the two factors are
inter-connected because the less likelihood the prospects of success are
the more inducement there is on the applicant to abscond. In every case
where bail after conviction is sought the onus is on the applicant to show
why justice requires that he should be granted bail.”

It is without a doubt that a number of criminal appeals, especially

appeals where the state is the respondent are being struck from the roll
of our High Court for various reasons. The crucial factor which I want to
draw your maximum attention to here, is what happens if such an
appellant who had his/her appeal struck from the roll was released on
bail pending such appeal.
In R v Govender,69 an appellant who had been represented by an
attorney during the trial proceedings had been on bail pending appeal.
On the date the appeal was set down there was no representation by or
on behalf of the appellant, consequently the appeal was stuck off the roll.
In respect of bail, Broome, J.P stated that: “we regard it as necessary to
record our view that the effect of our order striking the appeal off the roll

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is that there is no longer any appeal pending. That being so, the bail
granted so the appellant by the magistrate has now lapsed. He is
therefore no longer on bail.”70

It is now clear that when an appeal is struck off the roll by an appeal
court, then there is no longer an appeal and bail lapses. After bail has
lapsed and the applicant intends to pursue his appeal and makes an
application for the reinstatement of his bail, the court determining
whether bail should be reinstated or not will have to exercise its
discretion afresh. See: S v Ramakolo.71

11. APPEAL AND REVIEW

An accused who feels aggrieved by the decision of a court of law in

respect of bail can appeal against such decision. The state as well has
the right to appeal in such matters, as was seen in S v Dean Arnold
Freygang (supra).

The duty of the appeal court in bail matters is provided for in Section 65
69 1955 (2) SA 130 (N)
70 at page 131A
71 1997 (2) SACR 749 (T)
of the Criminal Procedure Act. Section 65 (4) states that: “The court or
judge hearing the appeal shall not set aside the decision against which
the appeal is brought, unless such 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.”

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This means that the court or judge should approach the appeal while
assuming that the decision of the court below was correct and not to
interfere with such decision, unless if such court or judge is satisfied
that it was wrong. From this it can be deduced that the appeal court or
judge have limited powers compared to the court a quo, because it
cannot just substitute its decision, it has to be satisfied that the court a
quo was wrong. It is therefore, for the appellant to satisfy the appeal
court that the decision of the court below was wrong.

The leading authority on this subject is that of S v Barber72 where Hefer,

J explained the implications of Section 65(4) and stated the appeal court
has to be persuaded that the magistrate’s discretion was exercised
wrongly in order for it to interfere. Whatever the appeal court’s views are
the decision of the magistrate should not be interfered with unless if it is
wrong or if it can be said that the magistrate’s discretion was exercised
wrongly.

An appeal shall not be brought on the new facts discovered after the
decision against which an appeal lies, unless if such new facts are first
placed before the magistrate or court, against whose decision the appeal

72 1979 (4) SA 218 at 220 E-H; See also S v Mbele 1996 (1) SACR (W) 212 at 221G-H; Abraham Brown
v The State, unreported judgment of the High Court of Namibia, delivered on 28 April 2004, at p 10.
is brought and the said magistrate or court decides against the accused
on the new facts, as provided in Section 65(2) of the CPA. See also: S v
Yanta 2000 (1) SACR 237 (TK).

The high court may also be approached by way of review. It should be

noted immediately that section 307 of the CPA provides that the

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execution of sentence must not be suspended because of review, except
if the court which sentenced the convict releases him on bail. Bail
pending review can be granted and conditions may be attached thereto.
In a bail application pending review, just like in an application pending
appeal, the prospects of success plays a major role.

12. DUTIES OF A PROSECUTOR DURING BAIL PROCEEDINGS

In a criminal trial the prosecutor has a wider role to play than an

attorney representing a client. The prosecutor acts independently and in
the interests of the public, in so doing he/she not only represents the
state, but also the community at large and the interests of justice, in
ensuring that the court becomes aware of the truth. Besides the
information on which the court can decide to refuse or grant bail and if
so what conditions to be attached, can mostly come from the prosecutor.
It is his duty to disclose certain facts, even harmful to his own case. See:
R v Steyn 1954 (1) SA 324 (AD) at 337.

In S v Jija and others 1991 (2) SA 52 at 67j-68A, Erasmus, J stated

that “It appeared to the court from the nature of his address and attitude
that he regarded his role as that of an advocate representing a client. A
prosecutor, however, stands in a special relation to the court. His
paramount duty is not to procure a conviction but to assist the court in
ascertaining the truth.”

In Carmichele v Minister of Safety and security and another (Centre

for AppliedLegal Studies intervening),73 The plaintiff and another had

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instituted a delictual claim for damages against the Minister of Safety
and Security and another for injuries she had sustained after being
attacked by a certain Coetzee. During the attack Coetzee was on warning
pending trial on the charge of rape, despite being a threat to the
community. The basis of her claim was that police officers and public
prosecutors involved in this matter had a legal duty to prevent Coetzee
from causing her harm but had negligently failed to carry out such duty.
The High Court and the Supreme Court, in casu did not find that there
was such a legal duty and in the circumstances an order of absolution
from instance was made. Thereafter the plaintiff launched an application
with the Constitutional Court for special leave to appeal. The appeal was
upheld and the order of absolution from instance was set aside.

Ackerman et Goldstone J in Carmichele v Minister of Safety and

security and another (supra)74 stated that:

“There seems to be no reason in principle why a prosecutor who has

reliable information, for example, that an accused person is violent, has
a grudge against the complainant and threatened to do violence to her if
released on bail should not be held liable for the consequences of a
negligent failure to bring such information to the attention of the court. If
such negligence results in the release of the accused on bail who then

73 2002 (1) SACR 79 CC

74 at page 106 paragraph 74
proceeds to implement the threats made, a strong case can be made out
for holding the prosecutor liable for the damages by the complainant.”

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It therefore boils down to the fact that a prosecutor is not only under a
duty to act in the interest of the state, the public and the administration
of justice but he/she is obliged act as such.

Dated at Windhoek this 12th day of February 2007.

_________________
Adv. Orben Sibeya
State Advocate
Office of the Prosecutor-General
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