Malama-Kean v The State

8/8/2019 Malama-Kean v The State

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CASE NO.: SA 04/2002

IN THE SUPREME COURT OF NAMIBIA

In the ma tter be tween:

MARGARET MALAMA-KEAN APPELLANT

and

THE MAGISTRATE OF THE DISTRICT FIRST RESPONDENT

OF OSHAKATI NO

THE PROSECUTOR-GENERAL NO SECOND RESPONDENT

CORAM: Strydom , C.J.; OLinn, A.J.A. etChomba , A.J.A.

HEARD ON: 2002/06/21

DELIVERED ON: 14/ 10/ 2002

APPEAL JUDGMENT

OLINN, A.J.A.:

SECTION A:

INTRODUCTORY REMARKS

The a ppea l befo re us is aga inst a n orde r of the High Court made in a review

ap plic ation c omb ined w ith an a pp eal where the a pp lica nt sought to have a n


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order set aside which was made by the Magistrate for the District of Oshakati

on 5th July 2001 refusing to relea se the app lic ant und er article 12 (1)(b) of the

constitution.

Mr Heathcote appeared before us for the appellant, Mr Botes for the first

respond ent a nd Mr January for the sec ond respond ent.

Although Mr Botes and January each provided this Court with written heads of

argument, they informed this Court at the outset that the argument will be

c om bined and Mr Bote s will present the viva voc eargument.

It should be noted at the outset that the arrest of the applicant and the

subsequent legal proceedings, followed upon a complaint by CD Namibia, a

non-governmental organization, apparently engaged in activities for the

upliftment of Namibians, with head office in Oshakati, alleging that substantial

sums of money had been stolen, apparently by one or more of its employees.

At the time which this was discovered, the applicant was the Chief Executive

offic er of the co mp lainant.

I w ill hereina fte r refe r to the p arties in this appea l as in the Court a quo.

The a pplic a tion for review to the Court a quo, was based in essence on the

following allegations:


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Magistrates Court at Oshakati on 13th July 2001, failingwhich, she ma y be arrested and her ba il ma y be forfeited ;

3. The app lic ant is relea sed in te rms of Artic le 12(1)(b ) of the

Constitution from all the conditions of her bail other thanthose c ontem plated in the order under pa rag rap h 2;

4. The sec ond respond ent is ordered to pay the c osts of theapplication.

As pointed out by appellants counsel, the Court a quo made the following

findings of fa c t releva nt to the merits.

1. the investiga ting office r withheld vita l information fromcourt, when making his affidavits which were placed beforethe High Court and when testifying in the MagistratesCourt;

2. the delay c omp lained of by the ap plic ant wa s theresponsibility o f the Sta te ;

3. the arrest of the ap plic ant wa s in the nature of a pre-

em ptive strike;

4. the d elay wa s p resump tively prejud icial;5. the ap plic ant and her law yers had been misled by the

sta tem ents ma de b y the pub lic p rosec utors;

6. the ap plicant s trial did not take plac e within a rea sonabletime.

The app lic ant sought leave to a pp ea l, was granted lea ve to

appeal .

The g round s of a pp ea l are set o ut in the no tice of a ppea l as follows:


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1. The lea rned Judge s erred in not releasing the Appe llant interms of Article 12(1)(b) of the Namibian Constitution, in thesense that the Appellant is to be released from furtherprosecution.

2. The learned Judges erred in tha t they found tha t they stillhave a disc retion onc e a fac tual finding had bee n ma dethat the Appellant did not have a trial within a reasonabletime, alternatively did not exercise their discretion judicially,alternatively was influenced by wrong principle, in thefurther alternative misdirected themselves on the facts, inthe further alternative reached a decision which cannotreasonably have been made by a Court properly directingitself, and mo re p articularly on the fo llow ing basis:

2.1 de spite the fac t that the lea rned Judg es found:

(a) tha t Mulimina withheld vita l information whe nmaking his affidavit which was placed beforethe High Court and when testifying in theMa gistra te s Court;

(b) that the de lay c omp lained of by the App ellantwa s the responsibility of the Sta te ;

(c ) tha t the a rrest of the Appellant wa s in the

na ture o f a p re-empt ive strike;

(d) tha t the delay wa s p resump tively p rejudicial;

(e) that the App ellant and her law yers had be enmisled by statements made by the publicp rosec uto rs; and

(f) that the App ellant s trial did not take plac ewithin a reasonable time, the Court still failedto release the Appellant from further

prosecution;

2.2 the lea rned Judge s erred in finding tha t the Appellantdid not prove that she would suffer irreparable trialrelated prejudice, particularly in the light of thefinding of the learned Judges that the delay infinalising the trial was presumptively prejudicial to theAppellant. Such p resump tive prejudice a lso rela tes totrial related prejudice and ac c ordingly the evidentialburden shifted to the Sta te to p rove in such


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c irc umstanc e, that the Appellant would no t suffer tria lrelated prejudice ;

2.3 the lea rned Judge s erred in not find ing tha t the delay

c aused by the Sta te w as a de libe rate strata gem;

2.4 the lea rned Judge s failed to take into c onsiderationthat in as far as the Appellant was hampered inproving trial related prejudice, it was not her fault ata ll, but the fa ult of the Sta te in not p roviding deta iledc harges ag ainst the Appe llant in order to ena ble theApp ellant to prove trial related prejudice ;

2.5 the lea rned Judge s erred in find ing tha t the wo rdrelease as used in Article 12(1)(b) of the

Constitution can have a different application andmea ning, dep end ing on the c irc umstanc es;

2.6 the lea rned Judge s erred in finding tha t onc e it hadbeen determined that the Appellants trial had nottaken place within a reasonable time, then and inthat circumstances, the Court does have a discretionwhe ther or not to release the Ap pe llant, pa rticularly inthe light of the wording of Article 12(1)(b) whichprovide s that the App ellant shall be released ;

2.7 in as far as the lea rned Judge s had a d isc retion onc ethey found that the Appellants trial had not takenplace within a reasonable time, the learned Judgeserred in not releasing the Appellant from p rosec ution,particularly in c irc umstanc es whe re:

(a ) as a result of the pre-tria l irregularities, themislea ding o f the Courts by the Sta te a nd/ orthe Prosecutors acting on behalf of theSec ond Respond ent, it wa s an ap prop ria tecase to release the Appellant without being

necessary to determine whether or not theAppellant w ill suffer tria l relate d p rejudice ;

(b) as a result of the c omb ined fac tor that theAppellant did not have a fair trial in thec irc umstanc es (and therefore can never havea fair tria l) as we ll as the fac t tha t the tria l hadnot ta ken plac e w ithin a rea sonable time ;

2.8 the lea rned Judges erred in not find ing that on aproper interpretation of Article 12(1)(b) of the


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Constitution, that article does not require or demandtrial related prejudice before an accused can bereleased from further prosecution;

2.9 the lea rned Judge s erred in not holding tha t Article12(1)(b) envisaged two scenarios where an accusedsha ll be released from prosec ution, be ing:

(a) where the ac c used (App ellant) did not have afair trial and cannot have a fair trial as a resultof the pre-trial irregularities mentioned in theAppellants application, (i.e. even incircumstances where an unfair trial can takeplac e w ithin a rea sonable time);

(b )where the trial had not taken place within areasonable time; both the aforementionedscenarios having been applicable to theAppellants case.

SECTION B:

THE BACKGROUND FACTS

The relevant b ac kground fac ts have be en set out b y Mr Hea thcote in his heads

of a rgument. These fac ts, with very few excep tions, ap pe ar to be a c c ep ted by

respond ents in substanc e. Conseq uently it is c onvenient to rep ea t these fac ts

for the purpose of this appeal, as renumbered by me and headings inserted

where appropriate:

1. The Ap pellant was a rrested on 27 June 2000. She firstappea red in co urt on 29 June 2000. The ma tte r wa s thenremanded until 30 June 2000 for a b a il app lic a tion.

2. On 30 June 2000, the p rosec utor informed the c ourt tha t theState wa s unab le to p roc eed with the bail ap plic ation asthe doc ket is vo luniane. It was then agreed tha t the ma ttershould b e p ostp oned to 4 July 2000 for the b a il ap p lic a tion.


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3. On 4 July 2000 the p rosec utor informed the court tha t a ba ilapplication was opposed on the basis that, inter alia, theinvestigat ion would take a long time. Thereupo n, theAppellants legal representative accepted that the case

had to be rema nded for a b ail ap plic ation to be held.

4. On 9 Aug ust 2000 the ba il app lica tion wa s c a lled. The Sta tewas represented by public prosecutor Imalwa (hereinafter Ima lwa ) and the App ellant w as represented by Ad voc ateMetcalfe.

5. The c ourt was informed that the Sta te w ould not ha ve a nobjection against bail, and that it was agreed (or so it wasthought) that the Appellant had to pay an amount ofN$100,000.00, and had to d eliver a Toyo ta Co rolla m otor

vehic le to the polic e a s sec urity.

6. In ad d ition, the b ail c ond itions we re d ete rmined as:6.1 the App ellant had to rep ort twice pe r da y to the

Oshakati police station between 07h00 and 08h00and b etw een 19h00 and 20h00;

6.2 the Appellant had to surrend er her pa ssport to theClerk of the Oshakati Court;

6.3 the Appellant wa s not permitted to lea ve the distric tof Oshakati without permission of the investigatingoffic er or the stat ion c omma nder; and

6.4 the App ellant wa s not to visit the premises of theorganisation of CD or interfere with the witnesses inany ma nner.

7. During these bail proceedings Imalwa, the publicp rosec utor, on tha t oc c asion, sta ted the follow ing:

Regarding problem of transport problems accusedmight inc ur, Sta te ob jec ts to tha t, investiga tionsincomplete, complication investigations, moneyinvolved so far is in excess of one million N$ ifc onvicted , sente nce will be high.

8. Me tc a lfe, in sup port of his sub missions sta ted inter aliaThe investiga tions to be long .

9. Metcalfe further raised the issue that the matter was one ofneg otiat ion. To this Ima lwa la ter respond ed :


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Communications between the attorney (defence) and ofthe boa rd is irreleva nt to our c rimina l c ase. Tha t is the ir c iviltrial.

10. Therea fte r, ba il of N$150,000.00 wa s grante d and onc ond itions as set out above . The mat ter wa s thenpostponed for further investigations.

11. Thereafter, the ma tte r wa s postponed on va rious oc c asions.Those da tes, and the rea sons given fo r the p ostponeme ntc an be summa rised as follow s:

14/ 8/00 Investiga tion inc omplete

12/ 9/ 00 Docket not brought, do not know how farinvestiga tions a re. Ad j. To 16/10/ 2000 for fi

16/ 10/ 00 Ma y the ma tte r be postponed till 23/ 11/ 00 forfi

23/ 11/ 00 Ac c ording to the court order the c ase wa spostponed to 29/4/00 for further investigation.This is most probab ly an inco rrec t da te . Itshould read 29/ / 11/ 00.

29/ 11/ 00 The c ase wa s ad journed to 7/12/00 for anapplication to be made on behalf of theappellant.

7/12/ 00 The p rosec uto r sta ted The investiga tion is notcompleted

As well as: we waiting for PG Decisionwhether to withdraw or continue with thecase

When Me tc alfe stated that the matte r is a c ivilone other (rather) than a criminal one, theprosec utor sta ted : Court will dec ide

7/12/00 The case wa s postponed to 19/ 12/ 00 for furtherinvestigations.

19/ 12/ 00 The p rosec utor req uested the ma tte r to bead journed to 01/ 2/01 for further investiga tion.


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1/2/01 The p rosec uto r sta ted: The c ase is still und erinvestiga tion and May the ma tter be a dj until9/4/ 01 for fi

The first o b jec tion to postponements req uested by the Sta te

12. On 9 Ap ril 2001, when the Sta te ind ica ted a ga in tha t theinvestigations were incomplete the appellantsrep resenta tive ob jec ted . Therea fter, the ap pellant testified ,inter alia, that:

12.1 she wa s a Zamb ian citizen and wa s a rrested on 27

June 2000;

12.2 she ca me ac ross doc uments which sugg ested tha tthe financ e offic er might have been c omm itting theftand fraud . She rep ort this to the b oa rd d uring Ma rch2000;

12.3 on 27 June 2000 howe ver, she wa s arrested out of theblue;

12.4 she did not see her c hild ren sinc e Novem ber 2000

(who a re twins, 6 yea rs of a ge );

12.5 a lrea dy during the internal investiga tion:

Everything was there and even documentaryevidenc e wa s there.

12.6 the c om pla inant in this ma tte r has informed theprosec utor that :

It is the companys wish to withdraw any or criminal

charges against the said Margaret Malama-Keanwith immed iate e ffec t a nd do es not d esire a ny furtherp rosec ution against the sa id Marga ret Ma lama -Kea n

12.7 the State d id not provide the court with any evide nceto support the prosecutors statement from the bartha t: The investiga tions a re inco mp lete .

13. During the c ross-examination of the ap pellant theprosec utor put the follow ing to the appellant: So it wa s ad jonly for 8 times for fi not fo r 10 times.


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14. The ap pe llant s ap plic at ion/ ob jec tion wa s not upheld and

the c ourt ma de the follow ing orde r: Ca se ad j till 24/ 7/01 forfi finally.

The appellant s first a pproa c h to the High Co urt fo r relief

15. The ap pe llant then lod ged an app ea l to the High Court ofNamibia against the order of the learned magistrate madeon 9 Ap ril 2001. How ever, the Sta te lodged an inte rloc uto ryapplication, requesting the matter to be referred to theMa gistrate s Court. The High Co urt of Namib ia g ranted the

ap plication by the State a nd referred the matte r to, theMagistrates Court to reconsider after hearing the evidenceof the investiga ting o ffic er.

The p roc eed ings in the Ma gistra te s Court a fter rem itta l by the High Court:

16 During the proceed ings which c ommenc ed on 26 June 2001Mulimina (the investiga ting office r) wa s c a lled as the Sta te s

witness. With refe renc e to his evidenc e, the fo llow ing isrespe c tfully po inted out:

16.1 the cha rge shee t sta tes tha t the ac c used is c hargedwith the offence of fraud in that upon (or about) the day of . 19 and in the said district/divisions the said accused did wrongfully and unlawfullyAPA.No particulars we re p rovided ;

Mulimina s a ffidav it:

16.2 the first time tha t the Sta te ever end ea voured toprovide any de ta ils ag ainst the a pp lic ant w as whenMulimina stated in his affidavit (exhibit L) thefollowing:

There is a p rima fac ie c ase in this ma tte r against theApp lic ant (refe rring to the appellant ) viz:


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(i) a company vehicle was sold by money was

not de posited in the c omp anys ac c ount;

(ii) most of the cheques were written cash andnot in the na me of the c red itors;(iii) c heques indicated c anc elled were ca shed;(iv) staff members were receiving salaries through

the bank from company account but stillcheques were written cash as salaries of staffmembers;

(v) false claims were submitted to assurancecompany that housebreaking took place atthe companys office and computer wasstolen but no b rea king to ok plac e;

(vi) am ount w ritten o n the c heque d iffers with theamount written on counterfoil of thosecheques.

Muliminas viva voc etestimony:

17. In respec t of the respec tive sub-paragrap hs of paragrap h 11(quoted above) and in general, the investigating officer(Mulimina) testified as follows:

17.1 the accused was arrested on 27 June 2000;17.2 he did not investigate the matter for nine months as

alleged. He said:

The law yer of the c omp any and the lawyer ofaccused, they requested me to put the investigationon hold as they were busy trying to settle the matteroutside c ourt.

17.3 the wording here is d ifferent tha n in exhib it L where hesta ted in his a ffidavit tha t:

During July 2000 the lawyer of the Applicant by thenam e o f Mr Tham ba pilai and the lawyer of thecompany Mr Greyling indicated to me to halt the


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investigation because the Applicant in this matteroffered to pay N$250,000.00 as a settlement of theloss the c om pa ny incurred .

17.4 he hand ed in a letter da ted 13 Novem ber 2000,which wa s in the Sta te s possession. The p rosec uto ragreed that the defence was not in possession ofsuch a c opy;

17.5 the let te r (exhib it J) is dated 13 Novem ber 2000. Thisletter was addressed to the Deputy Prosecutor-Gene ral and ma rked for the attention of Ima lwa ;

17.6in tha t lette r it is c learly sta ted tha t:Our instructions are further that the criminalinvestigation of the matter were put on hold for thispurpose.(instructions which were received from Greylings client(CD Namibia).)

17.7nevertheless, this letter was only handed in to courtduring

the proceedings of 26 June 2001;

17.8 Mulimina further testified tha t he stopped the

investigation, and that the approach to halt theinvestigation came within a month after theappe llant wa s arrested ;

17.9 he further testified tha t:

Sinc e from July up to Nove mb er without do ing a nyinvestiga tion. We sta rted in Dec em ber 2000.

17.10 he only investiga ted this c ase a s from Dec ember toMa rch 2001. It wa s only for four months ;

17.11 his investiga tion was d ifficult bec ause the office of CDin Katima Mulilo has closed since December 1998,and the o ffic e o f CD Rundu sinc e Dec ember 1997;

17.12 if there was no interference with the investigationafter the arrest of the appellant, the investigationwould ha ve alread y com pleted;


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17.13 a fte r he, in essenc e, reiterated the a lleg a tions ma dein paragraph 11 of his affidavit (quoted above) hesta ted tha t:

The money invo lved in this c ase is 2.8 million. Thisincluded, does not include the money for thec omp uter and the money for the c ar.

17.14 during c ross-examination he testified tha t theinvestiga tion was c om pleted on 12 June 2001;

17.15 during the ba il app lica tion and on 9 Ap ril 2001 heinformed the prosecutor (about the status of theinvestigation);

17.16 the Deputy Prosecutor-General (Imalwa) instructedhim to c ontinue w ith the investiga tion;

17.17 he further testified that:A: During the ba il app lica tion I wa s here and on

the 9th April 2001 and I was outside.

Q: During this period you d id d isc uss this ma tte rwith Mrs Imalwa .

A: Yes, but on the 9th

I d isc ussed it withHaindombo.

Q: It is imp ortant fac to r for the Court to know tha tthe investiga tions we re ha lted during June.

A: Yes.

Q: Whom did you inform to inform the c ourt.

A: I spoke to Ima lwa .

17.18 he ha lted the investiga tion during July 2000;

17.19 he had bank statements of the company in hispossession. It wa s in the d oc ket ;

17.20 he ha d no sta teme nt in his possession tha t acc used 1cancelled the cheque but thereafter cashed thec heque w hich she c anc elled;


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17.21 a lthoug h first reluctant , he had to c onc ed e that hehad no statement confirming that a housebreakingtook plac e.

17.22 the internal investigation of the company wasc omp leted during 2000 alrea dy;

17.23 he further testified in c ross-examina tion tha t the Sta teProsec utor had told him to stop the investiga tion.

17.24 he had a statement, implicating the appellant inrelation to -an a llegation mad e in pa rag rap h 11.1 ofhis a ffida vit;

17.25 he trusted the appellant that she would never

abscond;

17.26 in doing his investiga tion, he is not a llowe d to phoneoutside the country;

17.27 he further testified tha t the Pub lic Prosec uto r knewthat he had halted the investigation during June2000.

17.28 on the second day of his cross-examination, healready started to downscale the alleged

involvement o f ac c used 1 in the 2.8 million. He sta tedthat:

According to the internal investigations report this isthe a mount the c omp any has lost.

17.29 he further agreed that he was not saying thatac c used 1 com mitted fraud or theft in an am ount of2.8 million;

17.30 acc used 2 in fac t ad mitted fraud d uring the internal

investigation;

17.31 he learned that accused 2 admitted fraud on 27June 2000;

17.32 he dec ide d no t to a rrest ac c used 2 be cause of thesettlement negotiation, but he did not releaseaccused 1 (who was then still in jail) because therewas still some cheques which were not accountedfor;


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17.33 he then c onc ed ed tha t he only had a prima faciecase in respect of paragraph 11.1 and 11.5 (asindica ted in his a ffida vit); The a llega tion in 11.1 wa sthat a company vehicle was sold but the money

was not deposited in the companys account; theallegation in 11.5 was that a false claim wassubmitted to the assurance company thathousebreaking took place at the companys officeand computer was stolen but no houseb rea king tookplace.

17.34 the rec ord omits the wo rd onlybut it submitted, thatif regard is had to his answers in re-examination, it isc lea rly wha t he state d;

17.35 when the affida vit of Anna Herman was rea d to himhe ag reed that it did not indic ate tha t ac c used 1 wa sguilty o f theft o r fraud of the a mo unt in N$22,000.00;

17.36 he further agreed, that as a result of the delayfinalising the investigation it would be very difficult foraccused 1 to use her former employees as witnessesbe c ause the b ranc hes of CD Nam ibia c losed do wn;

17.37 he a greed tha t the appellant will suffer trial relate dprejudice;

17.38 he a greed , that if only the ba il cond ition ofN$150,000.00 remains applicable, the appellant willalso stand her trial;

17.39 after the hearing of 9 April 2001, he asked theprosecutor why he was not called, but he was notgiven a ny rea son;

17.40 therea fter, the de fenc e end ea voured to hand in asta tem ent of Anna Herman. Tha t is the sta tem ent

tha t was in possession of the Sta te , and on w hich theinvestigation officer relied for the allegation that hehad a prima facie case against the appellant inrelation to the allegation made in paragraph 11.1 ofhis a ffidavit. The Sta te ob jec ted , and the c ourtrefused to accept to receive the statement, holdinginter aliathat:

The c ourt will not a llow the sta teme nt to be hand edin as the c ourt feels tha t the Sta te might b eprejudiced.


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17.41 the defenc e endeavo ured to hand in an affida vit of

Hennie Barnard, in response to the affidavit (thena lread y rec eived b y c ourt as exhibit I). The Sta te

objected and the court upheld the objection statinginter aliathat the State might b e p rejudic ed ;

17.42 during re-examination, inspector Mulimina agreedthat there was only a prima fac iecase regarding theMa zda 4x4 and tha t the a mo unt of 2.8 million, did no tinclude the amount of N$22,000.00 in respect of thevehicle;

17.43 he continued to testify tha t ac c used 2 was involved inrelation to 1.6 million dollars, but for the remainder of

1.2, nob ody is responsible.

The testimony o f Greyling , attorney for com pla inant C .D. Namibia

18. Therea fter, the Sta te ca lled Mr Greyling who testified tha t:

18.1 he wa s ap proac hed by Mr Tham ba pilai (theappellants legal representative) to settle the issue

be tween the ap pe llant and Mr Greyling s c lient;

18.2 he soug ht the p ermission of the investiga ting o ffice r toenga ge settlement nego tiations;

18.3 he confirmed that, accused 2 was the accountingofficer of CD Namibia, and being the accountingofficer, she would be the principle officer and thepe rson und er whose c ontrol financ es of the compa nywould be ;

18.4 in fact, CD Namibia took particular care to haveaccused 2 appointed as a finance officer in order tocontrol all the financial issues and money of CDNamibia;

18.5 he d id no t instruc t Mulimina to ha lt the investiga tion;18.6 he also did not tell Mulimina to stop the investigation

but he expected that the investigation will notproceed.


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18.7 CD Namibia board held an emergency meetingbefo re the a ppe llant wa s arrested .

Mr Botes on behalf of the respondents, however pinpointed certain other

relevant fac ts which must be c onsidered . A useful summ ary of the most

relevant p oints a re c onta ined in p arag raphs 23-46.

The c orrec tness of the sa id summ ary was not c onte sted on appea l. The fac ts

not properly covered or on which respondents counsel wished to place

additional emphasis are those contained in the following paragraphs of the

summ ary which I have renumb ered for the p urposes hereof:

(i) On 9 Aug ust 2000 the ba il app lica tion was hea rd . The Sta tewas represented by a Public Prosecutor Imalwa and theapplicant was represented by Mr. Metcalfe instructed byThamb ap ila i.

(ii) Afte r som e d isc ussions took p lac e and / or submissions we remade the Court granted bail to the applicant on certainc ond itions. All the cond itions we re c onc urred with and / orc onsented to b y Mr. Metc alfe.

(iii) During this appearance Mr. Metcalfe indicated that certainnegotiations were ongoing between the accusseds legalrepresentatives and Greyling Associates the legalrep resenta tives of CD Namibia.

(iv) Thereafter, the ma tte r wa s postponed on va rious oc c asions.The m at ter in fac t from the 14th of August 2000 up and untilthe 9th of April 2001 was postponed for approximately ninetimes for furthe r investiga tion. The d a tes and the reasons forthe p ostp oneme nts a re evide nt from the releva nt portions ofthe rec ord of p roc eed ings.

(v) It is evident from the relevant portions of the rec ord tha t theapplicant at all relevant times was legally representedduring the said postponements and that most of the datesof the postpo neme nts in fac t were ag reed upon.


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(vi) On the 7th of December 2000 Mr. Metcalfe appeared on

behalf of the applicant on the instructions of Mr.Thamb ap ila i. At this appea ranc e the Court was informed

that the complainant apparently wants to withdraw thecase against applicant and that the matter be referred tothe Prosec uto r-General for his dec ision. Mr. Me tc a lfe a lsomade application for the reduction of the bail conditions.(My empha sis ad de d.)

(vii) On the 1st of February 2001 Mr. Barnard, the present legalpractitioner for record of the applicant, officially started torep resent the ap plic ant. On that date the ma tter wa spostponed until the 9th of April 2001 for further investigation.

(viii) Up and until the 9th of Ap ril 2001. None of the leg a lrep resenta tives nor com plainant complained or even ma deany remark as to why the investigation was not completed.It is submitted that this is indicative of the fact that, as Mr.Greyling und er oa th te stified , Mr. Thamb ap ila i was fullyaware of the status of the investigation and the settlementnego tiations entered into be twee n the pa rties.

(ix) On the 9th of April 2001 when the matter again was to bepostponed Mr. Barnard, appearing on behalf of theap plic ant, ob jec ted to a further po stpo nement. The

ap plic ant wa s called to testify:

M r. Metc a lfe do ap pe ar for me . I also informed him of thed istress I am fac ing. He sugg ested to m e tha t if I couldn table to wait for trial in three years I could reach an outsidec ourt agreed which involved the money. I wa s veryunhap py about with this but I had not a lternative. It is myapplication so that the Court give me chance to visit myc hild ren in England . And if it a llow postp onement.

Mr. Barnard , in his address to Court a fter the evidenc e o f the

app lica nt had b een led , ma de the follow ing submissions:

We were ap proac hing the Court to give the State c hanc eto investiga te a nd no t to d ep rive us from being w ith a fam ily.We a re he re fo r fa irness. Tha t mea ns if the Court relea seac c used in terms of Article 12(b) o f the Constitution ac cusedc an be rec harged . I a lso refe r the Court to the Article 5 ofthe Co nstitution. We are asking the Court to release theac c used which will mea n tha t she w ill be g iven he r passportand she is free to go to her country which the case is beinginvestigated.


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(x) From the a foresa id it is evident that the ma in gist of the

applicants application was to be released at least fromsome of her bail conditions so that she can be able to visit

her child ren in Eng land . It never wa s testified or submitted inargument that the relief sought through the a pp lic ation wa sa p ermanent stay of prosec ution.

It is imp ortant a lso to no te the follow ing further deve lop ments:

(i) The ad journment grante d on 9/04/2001 to 24/ 07/ 2001 wa s sta tedto b e a final ad journment.

(ii) Before the ma tter could b e d ea lt on 24/ 7/ 2001, the a pp ea l by theapplicant was launched on 12th Ap ril 2001. Befo re it co uld be

hea rd , on 15/6/ 2001 the Sta te launc hed an interloc utory

ap plication for the remittal of the ma tter to the Magistrate s Court

to allow the investiga ting o ffic er to testify.

As a consequence the adjournment by the Magistrate to

24/7/2001 was set aside and the matter referred back to the

Ma gistrate for rehearing not later than 26th June 2001.

(iii) The rehea ring too k plac e on 26th June and continued until 28thJune and then adjourned until 5/7/2001 when the magistrate

ga ve judgm ent. Ac c used no. 1 wa s rep resente d a t this hea ring

by Advoc ate Heathc ote a nd the State b y Advoca te Ima lwa .


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(iv) On 5/ 7/2001, the last d ay of the rem itta l hearing, Ima lwa informedthe Court that the Prosecutor-Generals decision has now come

to hand and that the Prosecutor-General had decided that the

applicant shall be arraigned, as accused no. 1, together with

Shipika , as ac c used no . 2, to sta nd tria l in the Reg iona l Court in

Oshakati, on count 1, theft general deficiency (2, 894, 740.10)

and c ount 2 Contravening Sec tion 2(b) of O rd inanc e 2 of 1928,

a lternatively c ontravening Sec tion 2(c ) of Ord inance 2 of 1928

Corruption.

The Sta te then a pp lied for the c ase to b e fo rma lly transferred to

the Reg iona l Court. The Sta te a lso a pp lied for the ma tter to be

postponed to 9th

July because accused no. 2 could not be

present, according to Advocate Metcalfe, who at the time was

her legal representative and apparently no longer counsel for

ac c used no . 1, the ap plic ant.

Applicant Malama-Kean objected to the postponement, as well

as to the transfer to the Reg iona l Co urt. Her lawyers we re not

present a nd she w as unab le to give any ground for the o bjec tion

for the transfer to Reg iona l Court. She exp lained tha t her absent

lawyer, i.e. Mr. Barnard , told he r to ob jec t.


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The Co urt then ruled that ac c used 1 and the reco rd are

transferred to the Reg iona l Court, Oshakat i on 13/ 7/2001 for fixing

a trial da te w ith c ounsel for the ac c used .

(v) On 9/7/2001 the case of accused no. 2, now represented byAdvocate Metcalfe, was also transferred to the Regional Court,

with the consent of Advocate Metcalfe, for the fixing of the trial

da te on 13/ 7/2001.

It is c lea r from the above tha t a t this sta ge the Sta te as we ll as the Court

also had to consider the interests of accused no. 2 because both

ac c used we re e ntitled to a fair trial.

SECTION C:

THE INTERPRETATION AND APPLICATION OF ARTICLE 12 (1)(b ) OF THE NAMIBIAN

CONSTITUTION READ WITH ARTICLES 5 AND 25

In this reg ard this Court ha d the bene fit no t only of the interesting and va luable

arguments of counsel in this case, being Mr Heathcote for appellant and Mr

Botes and Janua ry for respond ents, but a lso those o f Mr du Toit for appellant,


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assisted by Mr Grobler and Mr Sma ll for respond ent in the appea l of Myb urgh v

the Sta te , where the same issues we re c anva ssed .1

The judgm ent in Myburgh in regard to the interpretation and ap plic ation of art.

12(1)(b) of the Namibian Constitution read with art. 5 and 25 as contained in

Sec tion B of tha t judgment is app licab le to this judg me nt, mutatismutandis.

The first leg of the enq uiry is the meaning and app lic a tion of the wo rds in

12(1)(b) a trial referred to in sub-article (a) hereof shall take place within a

rea sona b le time

Befo re the p resent a ppea l and tha t in Myburgh v The Sta te, the only cases

where this issue wa s dea lt w ith wa s tha t in Sta te v Strowitzki & An., and Sta te v

Heidenreich, both dec isions of the High Court of Namibia. The afo resa id

dec isions of the High Court did no t d iffer in any ma terial respec t on this issue. I

a ffirm fo r the purposes hereo f what I sa id in Sta te v Myb urgh in this reg ard , but

for the sake of b revity I will only quote the c onc lusion arrived a t in tha t d ec ision:

The fa c tors to be c onside red in d ec iding when long is too long

wa s summed up in the Cana dian c ase of R v Morin and ac cep tedas useful guidelines in Strowitzki. They are:

1. Leng th of delay;

2. wa iver of time p eriod s;3. the rea sons for the d elay

1 State v Myburgh, NmS, not reported


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(a )inherent time req uirements of the c ase;(b )ac tions by the ac cused ;(c )ac tions of the Crown;(d )limits on institut iona l resource s;(e )other rea sons for the delay; and

4. prejudic e to the a cc used .There is little o r no d isc ernab le d ifferenc e b etwe en Strowitzki andthe Namibian cases that followed in regard to the interpretation of

the te rms within a reasona b le time .

In Heidenreich it wa s sa id:

Reasonable is of course a relative term and whatconstitutes a reasonable time for the purposes of Art.12(1)(b) must be determined according to the facts ofea c h ind ividua l c ase. The Courts must endea vour toba lanc e the funda mental right of a n ac c used to b e triedwithin a rea sona ble t ime aga inst the pub lic interest in theattainment of justice in the context of the prevailing

economic, social and cultural conditions to be found inNamibia What is required at the end of the day is avalue judg ment. .

In the Myburgh judgment I also dealt briefly with the judgment of the Court a

quo in this appeal in regard to the so-called second leg of the enquiry, i.e. the

interpreta tion of the wo rds sha ll be relea sed .

The length o f this judg me nt a s we ll as tha t in Myburgh, c overing essent ially the

same field induced me not to rep ea t the w hole Myburgh judgme nt on this issue,

but merely affirm it for the purpose hereof and repeat only the conclusion

arrived a t in that de c ision. The c onc lusion was:


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Afte r ca refully c onsidering the dec isions in S v Strowitzki, Heidenreich,

Van As and Malama-Kean, I have reached the conclusion that all of

them were wrongly decided in part in regard to the correct

interpretation of the words shall be released in art. 12(1)(b).

It seem s to m e tha t c ounsel for app ellant who argued the Ma lam a-Kea n

appeal before us, was correct in his contention that released in art.

12(1)(b) read with art. 12(1)(d) means released from the trial as

envisaged in 12(1)(a ). The Court a quo in Malama-Kean came to its

conclusion on the three possible forms of the order, without first

concluding that the words shall be released were intended in the first

p lac e to mean released from the trial as envisag ed in 12(1)(a). Mr.

Heathcotes contention also makes sense because such an

interpretation will also extend the remedy contemplated by art. 12(1)(b)

to accused persons who are not in detention, who would not have had

a remedy under art. 12(1)(b) if the term released in 12(1)(b) is restricted

to relea se from de tent ion.

Notwithstanding various pointers to the contrary in my analysis sup ra, this

construction appears to me to be the most logical solution to the

dilemma caused by the vague lang uag e of a rt. 12(1)(b) and a pp ea rs to

be the interpretation which best reflects the probable intention of the


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autho rs of the Nam ibian Co nstitution. It is a lso in line with a b roa d , liberal

and purposive a pp roac h.

The d ec isive c onsidera tion for the a foresa id c onstruction how eve r, is tha t

the principle that those criminal courts, which are competent courts

with the necessary jurisdiction, should have in their armoury of sanctions,

the power and the responsibility in an appropriate case of unreasonable

delay, to order a permanent stay of prosecution as at least one of its

d isc ret ionary pow ers. This is in ac c orda nc e with princip les and

procedures in most of the advanced criminal justice systems in

democ ra tic countries. It must be a ssumed tha t the framers of the

Namib ian Co nstitution a lso had this ob jec tive in mind .

The q uestion ho we ver still rem a ins what is the full signific anc e o f an order

sha ll be released from the tria l.

It is clear that the remedy provided in art. 12(1)(b) shall be released, is

c ouc hed in ma nda tory and peremp tory terms. Nevertheless it does not

seem to me that only one form of release from the trial would meet the

pe rempto ry requirement.

The following forms of relea se from the tria l, will in my view a ll be

legitimate forms meeting the peremptory requirement:


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(i) A release from the tria l p rior to a p lea on the merits, which does

not have the effec t of a p erma nent stay of the prosec ution and is

broad ly tantamount to a w ithdrawa l of the c harges by the State

before the ac c used had plead ed.

This form of release from the t rial will enc ompass:

(a ) Unc ond itiona l relea se from detent ion if the ac c used is still indete ntion when the order is ma de fo r his/ her release;

(b ) Release from the conditions of bail if the accused hada lrea dy bee n released on b ail p rior to ma king the order;

(c ) Release from any obligation to stand trial on a specifiedcharge on a specified date and time if the accused had

previously been summoned or warned to stand trial on a

spe c ified , c harge, da te and time.

(ii) An ac quitta l a fter p lea on the merits;

(iii) A permanent stay of p rosec ution, either before or subseq uent to a

p lea on the m erits.


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Which form the order of release from the trial will take, will depend not

only on the de gree of p rejudice c aused by the failure o f the trial to ta ke

place within a reasonable time, but also by the jurisdiction of the Court

c onsidering the issue a nd ma king the order.

So e.g . as I have indica ted in the d isc ussion sup ra, a magistrates court

would not be able, as the law stands at the moment, to order a

permanent stay of prosecution before plea and remedy no. (iii) sup ra

would thus fall outside the options available before the magistrates

court.

The High Court on the o ther hand , will be com pete nt to g rant a ll the

remedies enumerated under (i), (ii) and (iii) and as far as (iii) is

c onc erned , it w ill ac t in terms of its po wers as a c ompe tent court unde r

art. 25(2) read with a rticle 5 and 12(1)(a) a nd 12(1)(b) o f the Constitution.

It is necessary to reiterate that the remedy of a permanent stay of

prosec ution w ill only be granted if the a pp licant has proved that the trial

has not taken place within a reasonable time and that there is

irreparable trial prejudice as a result or other exceptional circumstances

justifying suc h a rem ed y.

Courts making an order under 12(1)(b) must not merely state that the

accused shall be released, but use one of the forms of order


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enumerated in (i), (ii) or (iii), supra, so that the ambit of the order will be

c lea rly unde rstood by all conc erned .

SECTION D:

COMMENT ON THE FINDINGS OF FACT AND REASONS OF THE COURTA QUO

It is clear from the facts which are herein set out and not in dispute, that the

Court a quowa s at lea st justified in find ing :

(i) The a rrest o f the a pp licant/ ap pe llant wa s in the na ture o f a pre-em ptive strike.

(ii) The investiga ting o ffic er, Mulimina withhe ld vita l information fromCourt, when making his affidavit and when he testified in the

rem itted p roc eed ings befo re the Magistra tes Court.

The vita l informat ion which w as withheld wa s tha t c onta ined in his investiga tion

d iary which c ontrad ic ts his a ffidavit a nd viva voceevidenc e in chief in so fa r as

he had c ontend ed in the a foresaid testimony tha t:

I stopped the investigation as it was put on hold and I only

investiga ted this case as from Dec ember to Ma rc h 2001. The

investigation diary showed, as the Court correctly found, that Mulimina

took at lea st twenty sta tements be tween the end of July and Novemb er

2000, and a lso obtained a va riety of o ther documents.


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The Court a lso sta ted : What hap pened seems to me to be c lea r. Mulimina

pursued the investiga tion with some vigo ur but a mo nth o r so a fter lea rning tha t

settlement proceedings were in progress, he lost interest and for several months

d id nothing . The Court further found : The delay c om plained of is the

responsibility o f the Sta te .

It seems tha t the Court in the last p rec ed ing sente nce sa id a nd intend ed to say,

that the several months that Mulimina did nothing was the responsibility of

the State and not that the whole of the delay in the case to b ring the a pp licant

to tria l, was c aused by the Sta te .

The sta tem ent b y the Co urt tha t the ac cused d id nothing fo r seve ra l mo nths is

however inconsistent with the previous statement by the Court that Mulimina,

according to he investigation diary took at least 20 statements between the

end of July and Novemb er 2000 and also o bta ined a variety of d oc uments.

Mulimina c hange d his stanc e somewhat when he later exp la ined in his a ffidavit

attached to that of Olivia Imalwa in the review proceedings launched in the

Court a quo on 9th August 2001, that during the period from the end of July

2000, he d id in fac t obtain certa in sta tements and do c uments c onc erning the

investiga tion but only those w hic h we re easily ob ta inab le.

There is som e support in the investiga tion d iary itself tha t the sta teme nts

ob ta ined during this period were ea sily ob ta inab le. Nevertheless, a


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c onsiderab le numbe r of sta tem ents we re obta ined . Mulimina s a foresa id

statements that he stopped the investigation as it was put on hold, are

consequently incorrect and constitutes a misrepresentation to the Magistrates

Court. It ma y a lso have c onstituted a m isrep resenta tion to the ap pellant and

her legal representatives or to some of them and it is possible that they were

misled by these sta tem ents, but tha t does not m ea n that the ap p licant suffered

any tria l rela ted p rejud ice as a result.

It is correct to say that Mulimina lost some interest when he was told of the

settlement proceedings and may from that point onwards, have pursued the

investiga tion w ith less vigour, but tha t is as fa r as one c an ta ke it.

The C ourt therefore erred in saying tha t when Mulimina hea rd of the sett lem ent

p roc eed ings he no t only lost interest, b ut for seve ra l months did nothing. (My

emp hasis ad de d.)

Consequently the finding that the delay complained of is the responsibility of

the Sta te on w hich the app lic ants leg a l rep resenta tives have so strongly relied ,

should carry little weight, because the alleged delay of doing nothing for

seve ra l mo nths w as fac tua lly inc orrec t and misconc eived .

Alterna tively, in so fa r as the taking o f a t least twenty sta tem ents betw een the

end of July and Novemb er 2000 and the obtaining o f a variety of d oc uments

is consistent with not pursuing the investigation with the required vigour, very


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little weight, if any, should have been attached by the Court a quo to this

neglect.

The Co urt a quo regarded the reason for Muliminas false evidence as a

strata gem o f laying the blame for the de lay in comp leting the investiga tion a t

the feet of the applicant and that this stratagem was without a proper

found ation. This finding must how eve r, be seen in conte xt to d ete rmine its

imp ortanc e and weight.

It must be remembered e.g. that it is an undisputed fact that there were

settlement negotiations almost from the beginning of the period following on

the a pp licant s arrest on 27/ 6/2000 right up to no tifica tion of the sett lement a nd

of the complainants withdrawal statement on 29/11/2000.

It is clear from the testimony of Greyling, attorney for the complainant, that not

only was it his point of view, that the c ontinuation o f the investiga tion would be

futile, in the light o f the sett lem ent nego tiations, but he c om municated this view

to Inspec tor Mulimina.

Although he did not order Mulimina to put the investigation on hold, he

req uested Mulimina to d o so pend ing a possible set tlement . It is of course

correct to say that even if Greyling told Mulimina to put the application on

hold, that w ould have be en a n instruc tion w ith no legality and Mulimina would

not ha ve been bound to c om ply with it. But it is unde rsta ndab le, even if it wa s


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merely the point of view of Greyling which was conveyed to Mulimina, if

Mulimina was influenced by the point of view of Greyling to pursue the

investiga tion with less vigo ur and to p roc eed a t a slow er pac e.

Any settlement between complainant and applicant and any withdrawal of

the c harges, wo uld c ertainly have been a n imp ortant deve lop ment, whic h the

Prosecutor-General would have had to consider, in conjunction with all the

other available facts and circumstances, to decide whether to continue with

the p rosec ution, or withd raw the c harge s.

This notw ithsta nding, the Prosec utor-General would need a prop er and

completed investigation to enable him/her to exercise his discretion properly,

whether or not the complainant has settled with the suspect and wishes to

withdraw the c harges.

The Prosec uto r-General will a lso ha ve to g uard against a llow ing or put ting his

stamp of approval on settlements that may amount to the crime of

c om pound ing a c rime . This c rime co nsists in unlaw fully and intent iona lly

ag reeing for rewa rd not to prosec ute a c rime punishab le o ther than by a fine

only. 1

The eventual agreement be tween the a pp lic ant/ ap pellant a nd the

c omplainant in this case even p rovided that the c omplainant (CD Nam ibia) in

1 SA Criminal Law and Procedure: Vol 2 Common Law Crimes, p204, S100.


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lieu o f a payment of N$250,000 will not only withdraw the c riminal charges on or

before 15/11/2000, and will not bring any other charges by way of civil or

criminal action or otherwise against the second party (Malama-Kean), but will

also not facilitate support or give information, in the form of any evidence or

otherwise to any o ther ind ividua l, pa rty or orga niza tion and / or organisat ions to

bring any c harges or civil c laims aga inst the p arty of the sec ond part (Ma lama -

Kea n), upon payme nt of the sum of N$250,000. Clea rly, the Prosec uto r-

General may not or should not be party to such a scheme, which if not illegal,

ma y be on the b rink of illeg a lity.

The trial Court em pha sized the d enial of the a pp lic ant s leg al adviser

Tham ba p ila i in his a ffidav it tha t he had not b een aware tha t the investigat ion

had been halted and if he had become aware thereof, he would have

strenuously objected to any postponement purporting to be for further

investigat ion by the Sta te. The a ffidav it of Ric hard Me tc a lfe, the sec ond leg al

representa tive of a pp lic ant, is to the same effec t. Their assertions in an a ffida vit

wa s ob viously not tested in c ross-exam inat ion and the Court a quoshould have

kept this in mind when considering the veracity of such assertions in the light of

all the o ther evide nce and the c ircumstance s.

It should b e no ted here tha t Thamb ap ilai in his letter da ted 31/ 7/2000,

bemoaned the hardships of his client in prison and solicited the assistance of

the c omplainant in the then pending ba il ap plic ation.


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In the letter of reply dated 31/7/2000, Greyling pointed out that Malama-Kean

was the Chief Executive officer of the complainant and as such may find

herself in a total different circumstances than any of the other employees,

c lea rly insinuat ing tha t a s suc h she had som e e xp la ining to do.

Greyling further po inted out :

Our client is in the p roc ess of c om me nc ing with c ivil ac tion ag a inst

your client for the amounts which our client believes your client isliab le to them. As your client is a pereg rinus to our courts see nwith the well known fact that your client was about to leaveNamibia, our client is also contemplating procedures to fixjurisd iction in reg ard to your client and further to ob ta in sec urity forany amount which may be due and payable by your client shouldthe approp riate Court rule that she is liab le fo r any am ount.

However, it is quite clear from what Metcalfe said at an early stage of the

proceedings in the Magistrates Court, i.e. on the 9th

Aug ust 2000 tha t this is a

ma tter for negotiation tog ether with the letters from Tham ba pilai and the letter

in rep ly from Greyling a nd Assoc iate s, exhibits D a nd E respec tively, to the

effect that negotiations were taking place in which his client was vitally

interested, that appellant and her legal representatives not only knew of these

neg otiat ions, but relied on its outc om e.

When a pp lic ant testified in the magistrate s Co urt on 9.4.2001 during the hearing

whe re the Sta te a sked fo r an ad journment a nd Mr Barnard on beha lf of

ap plic ant op po sed , the ap plic ant inter alia testified in regard to Mr Metcalfes

ad vice to her:


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He sugg ested to m e tha t if I c ouldn t ab le to wa it for tria l in 3 yea rstime I could reach an outside Court agreed (agreement) which

involved the m oney. I wa s very unhappy about this, but I had noalternative.

Applicant said in her review application, indicating her knowledge of the

negotiations:

During the same appearance (9 August 2000) my legalpractitioner, Mr Metcalfe, informed the Court that there werecertain negotiations being conducted between the complainantin this ma tte r (CD Namibia , a non-governmenta l organizat ion, whowa s my forme r em p loye r and m yself). This information wa s madeavailable to the Court because it was relevant insofar as my bailc ond itions were c onc erned .

Metc a lfe in his address to the Court o n 7/12/ 2000 inter alia ma de the follow ing

sub missions:

The c omplainant want to w ithdraw the c ase ag ainst her. Thisc ase is a c ivil ma tte r ra ther than a c riminal mat ter (My emp hasisadded)

It m ust b e remem be red througho ut tha t Tham ba pilai wa s the a ttorney for

appellant and the instructing attorney for Advocate Heathcote, whenever the

latter ap pe ared for the ap plic ant up to the time w hen Mr. Barnard b ec am e the

instructing attorney on 9th Ap ril 2001. Therea fter Barna rd a lso be c ame the

instructing a ttorney for Metc alfe on those o c casions when Metc a lfe a pp ea red

for applicant.


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During the period when Thamb ap ilai wa s the a tto rney of app lic ant, one must

assume tha t he would have kept a pp lic ant informed of d evelopm ents as to the

settlement negotiations and its implications for the criminal case and its

investiga tion a nd that Metc alfe would a lso ha ve b een informed.

Greyling who testified in the remitted Magistrates Court proceedings and

who se evidenc e w as relied on b y the Court as show n above , also testified tha t

the legal representative of the accused was aware of all these, referring to

the settlement negotiations and his view that any investigation by the police

would have be en a wa ste o f time if a settlement is reac hed .

Greyling a lso testified :

The let te r wa s written a t this sta ge we w ere on use o f finalizing thesettlement ag reem ent. A draft cop y of an ag reem ent was faxedto my office by Mr Tham ba pilai and the p urpo se o f this do c umentwa s to request a nd p ersuad e the prosec ution not to p roc eed withthe c riminal c harge s.

He further testified under cross-examination b y Hea thc ote tha t he had informed

Tham ba pilai, the lega l rep resenta tive o f the a cc used , what he ha d told

Mulimina. He add ed that d uring tha t pe riod he spo ke to Tham ba pilai at least

four times a d ay. When pressed ag ain by Hea thcote you did not tell Mr

Thamb ap ila i that you instruc ted Mr Mulimina to ha lt the investiga tion he

rep lied : I d id no t tell him. What I d id is tha t I req uested Mulimina pend ing a


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possible set tlement . (My em phasis added ). This som ew ha t unc lea r testimony

appears to mean I requested Mulimina to halt the investigation pending a

possible set tlement .

This part o f the testimony of Greyling in chief a nd und er cross-examination b y

Heathcote, was not mentioned by the Court a quo in its assessment and

probably not considered by the Court when it apparently accepted at face

va lue the a ssertions of Thamb ap ila i and Metc alfe in their suppo rting a ffidav its

attached by applicant Malama-Kean in her review application to the Court a

quo.

In the letter by Greyling and Associates to the Deputy Prosecutor-General Mrs

Ima lwa , da ted 13 Novem ber 2000 it was c onfirmed tha t: It has be en

conveyed to the investigation officer that settlement negotiations were in

p rog ress and tha t if a sett lement c ould b e reached , the c riminal cha rge s will be

withd rawn. Our instruct ions a re further tha t criminal investiga tion in the ma tte r

we re p ut on ho ld for this purpo se.

It is highly unlikely that applicant/appellants legal representatives were not

aware of Greyling's view and that it was communicated to Mulimina with a

req uest to ha lt the investiga tions, pend ing the sett lement.


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It seems probable that the settlement eventually reached referred to above,

involved applicant as well as one or more of her legal advisers and that they

we re a t a ll relevant times not only aware of it, but participa ted in it.

To a c hieve this set tlement , must have b ee n a vita l link in the strate gy of

app lica nt and her leg a l advisers to end the c riminal p rosec ution. That a ttitude

clearly also emerges from the point of view put to the Court by Barnard,

app lic ants third leg a l rep resenta tive, when he submitted in his add ress to Court

in the remitted proc eed ings that:

The Prosec uto r-General has no right to refuse the o ffer of thec omplainant. The Sta te ca nnot proc eed w ithout the c omplainant.Whether the allegation is theft, it has to come from thecomplainant.

This submission was of c ourse without any lega l found a tion, b ut g ives insight in

the strateg y of the ap p lic ant and he r leg a l advisers a t the relevant time . I

therefor find it difficult to believe that they were mislead by Mulimina and/or

the p rosec ution a nd that if they had known that the investiga tion w as on ha lt,

they wo uld ha ve strenuously ob jec ted to a ny further postponements. It seems

more likely that the legal representatives did not object to the applications for

postponement because they were busy with negotiations with complainant

and its legal representatives to achieve a settlement which would end the

dispute between them and as they saw it, cause the criminal charges to be

withdrawn.


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Applicant Malama-Kean in her supporting affidavit in the review proceedings

said:

If I wa s awa re o f the fa c t tha t the investigat ion was ha lted , I wouldimmediately have instructed my legal practitioners (and I believethey would have in any event done so on their own initiative) tostrenuously object to myself being incarcerated or to remain underthe most stringent bail conditions, while no investigation wasconducted;(My emp hasis ad de d)

It should be noted that the applicant did not say that she or her legal advisers

would have ob jec ted to a postponem ent and / or asked for a permanent stay

of prosecution, but would have objected against incarceration and the

mo st stringe nt b ail cond itions, whilst no investigat ion wa s cond uc ted .

All these points however loses most of its relevance and significance,

considering that in fact the investigation was not halted and at most, the

investigation was not pursued with the same vigour as before, once the

settlement negotiations were brought to the attention of Mulimina, together

with a req uest b y Greyling to ha lt the investiga tion p ending the outc ome of the

sett lem ent neg otiat ions.

It follows from the above that Mulimina did not suck from his thumb this story of

ha lting the investiga tion pend ing the fina lizat ion o f the sett lement neg otiat ions.

The idea to ha lt the investiga tion originated from Greyling a nd wa s

communicated to him by Greyling and was well-known at least to,


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Thamb ap ila i, the first leg a l rep resenta tive of the a pp lica nt, and p rob ab ly to

those following him nam ely Metc alfe and Barnard. None of them ever

ob jec ted to the idea . Although Mulimina did not invent the ide a, he used it as

an excuse for not continuing the investiga tion with the req uired vigour. To justify

this he told a half-truth, namely that he halted the investigation completely,

whereas he only slowe d d own the pa c e.

In the review a pp lica tion be fore the High Court he exp la ined :

As a result o f this req uest a nd a lso b ec ause I did not wa nt tounnecessarily spent thousands of dollars of taxpayers money on anunnec essary investiga tion, I dec ided to heed to the sa id request. Isubmit that I only did what any investigating officer would havedone in the c irc umsta nces.

Mulimina in this affidavit also made it clear that he did in fact obtain some

sta tem ents and other evidential ma teria l which w ere ea sily ava ilab le.

In the circumstances Muliminas aforesaid mod us op erand iwa s not in bad faith

or grossly unreasonable and / or grossly neg ligent . At most he was neg ligent in

not pursuing the investigation with the necessary vigour during the period

between beginning of July and end of November, a period of approximately

four (4) months.

This mo dus op erand i to slow dow n the p ace o f the investiga tion was not the

correct course for an investigating officer to take, but it was understandable


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and mitigated by the attitude and conduct of the legal representatives of the

complainant, in which the applicants legal representatives apparently

acquiesced.

His misrep resenta tion to the Co urt a s c onta ined in his a ffida vit filed in the Sta te s

remittal application on June 2001 and in the remitted proceedings itself to the

effect that he had halted the investigation, wholly or in part, must be

dep rec a ted . The sa id misrep resentations, how ever, was not in itself the cause

of a ny unrea sonable d elay.

The only othe r refe renc e to the d elay which follow ed from Dec ember 2000 is

found in the reasons for the judgm ent o f the Co urt a quoon 15th Oc tob er 2001.

The Court rea sone d:

It was not until June 2001 that the investigation was completedand the earliest trial date that could be given was October 2001,som e 16 mo nths a fte r the a pp lic ants a rrest. Tha t, the Court furtherfound , is delay, which is p resump tively prejudic ial.

The Co urt c onc lude d that the trial of the a pp lic ant ha s not ta ken plac e w ithin

a reasona b le time and she is ent itled , to relief in te rms of a rtic le 12 (1)(b ).

The m ere length of the t ime which expired betw een a rrest a nd trial, is only one

of the fac tors to b e c onsidered, not a c onc lusive c riterion.


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I would have expected some analysis of the events following December 2001,

such as the investigation undertaken during that period; the applications to

Court on behalf of the applicant, and the finalization of these applications;

whe ther or not the Sta te w as in position to p roc eed w ith the p rosec ution and

the trial when applications and counter applications were pending and

judgm ents we re a wa ited during the p eriod Ap ril 2001 Oc tob er 2001; whe ther,

considering the scarcity of qualified manpower and skills to accomplish the

massive task, following Namibian independence, particularly related to the

increase in crime , the pe riod of 6 months for the c ompletion o f the investiga tion

was unreasonable and if unreasonable, was it caused by a deliberate

stratag em by State o ffic ials or was it c aused by incom pe tenc e a nd/ or

negligence and if negligence, was it gross negligence; was the accused

person a nd / or his/ her leg al rep resenta tives to blam e fo r som e o f the d elay; did

the accused and/or such representatives assert his/her rights to a trial within a

rea sona b le time; how serious is the a lleg ed c rime a nd how c omplex the

investigation; what is reasonable considering the fundamental rights and

interest of the accused person weighed against that of the victim and

ge nerally, the public interest relating to the ad ministra tion o f justice .

The Court a quodea lt with the c omplexity of the c ase a s follows:

I take a cc ount of the fa c t the c ase a ga inst the a pp lic ant is, in allprobability, a complex one but that does not weigh too heavilywith me.(My emp hasis ad de d).


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The reason w hic h the Court ad vanc ed for saying that the p rob ab ility that the

case is complex does not weigh too heavily with me, appears from the

follow ing: I respec tfully agree with the follow ing observa tion of Kriegler, in

Sand erson v At to rney Genera l, Easte rn Ca pe, 1998 (1) SACR 227 at 243 f:

If a pe rson ha s be en c harged very ea rly in the c omp lex ca se tha thas been inadequately prepared, and there is no compellingrea son fo r this, a Court should no t a llow the c om plexity of the c aseto justify an o ver leng thy d elay.

I respec tfully also agree with this d ictum, p rov ided it is prop erly ap p lied . The

key wo rds a re and there is no c ompelling rea son fo r this , refe rring to the c ase,

not having be en ad eq uately prepa red.

In the instant case, the Court correctly found that the arrest of the applicant

was a p re-em ptive strike. The reasons for this p re-em ptive strike em erge

c lea rly from the reco rd and wa s to the follow ing e ffect:

The c om pla int of the p ossib le the ft of a bout 2.8 million from the c om pla inan t

was lodged with the police at a time when the applicant, Malama-Kean, who

wa s an Exec utive Direc to r of the c om plainant a nd one of the suspec ts, was on

the verge o f lea ving the c ountry.

In the light of the fact that she was a Zambian citizen married to a British citizen,

she would have been outside the jurisdiction of the Namibian Courts and

police , onc e she left Nam ibia. This wa s the rea son fo r the p re-em ptive strike


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and appears to me as a good reason for her arrest, at a time when the

c omp lex c ase had bee n inad equa tely prepa red.

Tha t b eing the case, the Court a quo in my respectful view misapplied the

above q uote d d ic tum in Sanderson. I must emp hasize howeve r, tha t the fac t

that the pre-emptive strike was justified in the circumstances, cannot in itself be

a justific a tion for not pursuing the investiga tion with vigour a fte rwa rds. The

need for a pre-emptive strike indeed placed the duty on the investigators to

pursue the investigation with increased vigour, and with all means at their

disposal in order to ensure that a fair trial can take place within a reasonable

time.

Although as I have stated supra, the notorious scarcity of qualified manpower

and skills to accomplish the massive task following Namibian independence,

particularly relate d to the inc rea se in crime , is a lwa ys a fac tor to b e weighed in

the scale when considering the reasonableness of any delay, this cannot

bec om e a justific a tion for dep riving a suspec t or any a c cused of his/ her right to

a fa ir tria l within a reasona b le time . The d uty to e nsure this is p lac ed by article 5

on the Executive, the Legislature, the Judiciary and all organs of the

Government and its agencies.

The further rea son a dvanc ed by the Court a quo for its decision reads as

follows:


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Next, there is the neglec t on the part of the investiga tion offic er topursue the investiga tion w ith vigour. The ultima te responsibility forsuch neg lec t must rest w ith the Sta te, not the a pp licant.

As indicated in my analysis sup ra, this accusation can at most apply to the

period July 2000 to middle November 2000 and not to the period thereafter.

Furthermore, even though there was some negligence in not pursuing the

investigation during that period with the necessary vigour, the failure of the

investigating officer to do so, was mitigated by the role played by the

applicant and her legal advisers and the complainant and its legal advisers.

This role wa s to endea vour to a c hieve a settlement be tween the ac c used

Malama-Kean and the complainant and in that manner also achieve the

withdrawal of the criminal charges; to request the investigating officer to

suspend the criminal investigation until the negotiations for a settlement has

be en c onc luded; alternatively to put it to the investiga ting offic er that there

should be such a suspension and/or to acquiesce in such request or

communication.

In addition to this, the applicants lawyers did not assert her rights during this

pe riod by ob jec ting to the po stpo nements. In most c ases the p ostponements

were granted pursuant to consultations between prosecutors and defence

representatives.

Conseq uently it is not justified in a ll the c irc umstanc es to put the b lame for the

delay during this period exc lusively on the Sta te .


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A Court making a value judgment, must consider all the relevant information

before it to decide on the degree of complexity and how much time is

reasonably required to complete the investigation.

In this case, Mulimina testified in the remitted proceedings on 26/6/2001 that

the case was of complex nature, since the offence was committed in 1997,

1998, 1999 up to Ma y 2000. It wa s a lmost 3 yea rs and 5 months. During April

2001, I informed the prosecutor Haindobo that I needed three months to

c om plete my investiga tions as it wa s so d iffic ult to t rac e witnesses. Som e

witnesses are in Katima Mulilo, Khomas, Rundu in Kavango Region,

Oha ngw ena , Oshana a nd Oshakati and Omusati reg ion. The kilom etre from

Oshakati to Ka tima Mulilo is 1300 (km).

It is so d iffic ult bec ause to trac e these w itnesses. The o ffice in Rundu wa s

c losed during Dec ember 1998. It wa s now for us to trac e the e mp loyee s who

were em ployed by that c omp any a nd that w as so d iffic ult . Oshana , Omusati

and Oshakati we could not even finish investigations for four months as it was

d iffic ult to trac e them . Some of them resigned .

If there was no intervention after the arrest of the accused, the investigation

would a lread y have b een c omp leted .


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He a lso testified tha t his investigat ion ha s now be en c om plete d a nd the doc ket

a lrea dy with the Prosec uto r-Genera l for his dec ision.

Mulimina elaborated on the above in his supporting affidavit opposing the

ap plic ants review a pp lic ation w here he said:

It would be evident from the investigation done and statementstaken that I indeed during the said period (i.e. from date of arrestto November 2000,) obtained the following number of statements

on the follow ing d a tes, to w it:

(a ) 28th July 2000 6 statements;(b ) 8th Aug ust 2000 6 sta tements;

(c ) 29th August 2000 1 statement.As also would be evident from the contents of the police docketthe said investigation was an extensive one and comprised inter

alia:

(a ) Approxima tely 46 sta tem ents;(b ) Hundreds of exhibits and/or documents which are filed in 6

arch files.

He then expressed the opinion that in his experience as a police officer, a

period of 12 months in any event would not have been unreasonable to

c om plete the investiga tions herein. This I say in my experienc e as an

investigat ing office r who ha s investiga ted hundreds of c ases ove r a period of 15

years.


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Advo cate January, also a Deputy Prosec utor-General atta c hed to the offic e o f

the Prosecutor-General in Windhoek, made the following statement in his

affidavit in supp ort of the op po sition to ap plic ant s review ap plic ation:

The c ase d oc ket in the c ase o f the Sta te v Ma lam a-Kea n wasassigned to me for dec ision on 23 Ma rc h 2001. Afte r perusa l of thecase docket I was of the opinion that prima facie there is a caseag ainst both the ac cused . At that po int in time I wa s howe verinformed tha t there we re still investiga tions outsta nd ing. I ac c ord inglyinstructed the investigating officer to finalise the further investigationsas a m at ter of urgency and forwa rd all outstand ing d oc uments to our

office.

I have rec eived the outstand ing d oc uments and state ments when theinvestigating officer and Advocate Imalwa attended the previousappeal proceedings around 12 to 13th June 2001. The de c ision waseventually taken on 27th June 2001 and the instruction issued on 29thJune 2001. An am ended instruct ion was issued on 5th July 2001 asthere w as a mistake on the name of the sec ond ac c used .

The c ase involves an a mo unt o f N$2894 740.10 ove r a p eriod of about3 yea rs. Numerous c heq ues and doc uments a re involved . In my

experience, an investigation of this nature usually takes time to befina lised . Apart from the a lleg at ions tha t the investiga tion wa s partlydelayed as a result of settlement agreements, I am of the view that aperiod of a bout 9 (nine) m onths is not an unreasona ble t ime to fina liseinvestiga tions of this ma gnitude.

The a pp lica nt in this ma tte r elec ted to rem ain silent on he r warningstatement and did not provide any information to enable theinvestigating officer to investigate any justifiable defence that shemight have or to assist the Prosec uto r-General in his dec ision.

It should also be kept in mind that the applicant in her viva voc eevidence on

9/4/2001, testified that her then legal representative Mr Metcalfe already

sugg ested to her at a n ea rly stage tha t if she c ouldn t wait for tria l in 3 years I

c ould rea c h an outside c ourt ag reem ent which involved the mo ney


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This indic ates tha t Metc a lfe a t a n ea rly stage estimated the time it will take to

ge t fina lity if there wa s no sett lement w ith the c om pla inant .

There wa s no evidenc e o r othe r ma teria l befo re Co urt to rebut these op inions

of Mulimina a nd January as to rea sona b leness of the delay.

These o p inions, underline the need for the Co urt to be c autious in c om ing to a

c onc lusion a s to w hen the d elay ca n be said to be unrea sonable and c aused

by the Sta te . Ob viously ultimate ly the Court will a lso rely on its ow n expe rienc e

in the Courts in ma king its d iffic ult value judg me nt.

I have carefully considered the events during the period December 2000

Oc tober 2001. In my op inion, app licant has a lso failed to p rove any

unreasonab le d elay for which the Sta te w as responsible during this period .

The Court a quo did not deal with any of the other complaints and alleged

irreg ula rities ra ised by o r on b eha lf of the ap p lic ant . These w ere formula ted as

follows:

1. (a) The investiga ting offic er, Inspec to r Mulimina , neverstopped with his investigation and therefore did not informthe respec tive prosec utors tha t the investiga tion wa s ha lted ,alternatively;

(b) The p rosec utors who appea red in the Court (andwho had knowledge of the fact that the investigation wasstopped) failed to inform the Court about the fact that noinvestiga tion wa s be ing cond ucted . I po int out thatInspec to r Mulimina testified during the tria l proc eed ings that


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he did inform Prosecutor Imalwa that the investigation washa lted . I acc ordingly submit that if that is true:

(i) Imalwa knew about the fact that the investigationwa s halted during July alrea dy; and therefore

(ii) Ima lwa failed to inform the Co urt a bo ut such fa c t;

(iii) Ima lwa failed in her ethical duty to provide me with afa ir trial.

I have fully dealt with the co mp laint ag ainst Mulimina and need not e lab orate

further on tha t.

The whole com pla int is ba sed on the fa c t tha t no investiga tion was being

c onduc ted. But that turned out not to b e a fac t as the investiga tion was

neve r stop ped but a t most, wa s not pursued with the nec essary vigo ur.

Conseq uently the basis for the c om plaint fell awa y.

Ms Ima lwa veheme ntly denied any misrep resenta tion on her part. The fac t is

tha t she herself did no t a ppe ar for the Sta te in most o f the a pp lic at ions for

postponement.

The next a rgum ent w as tha t whereas she knew the c onte nts of the investigat ion

diary indicating that the investigation was never suspended, she became party

to Mulimina s dec ep tion by using his a ffidavit in the Sta te s rem itta l app lic a tion,

and aga in in supp ort of the Sta te s op posing a ffida vits in app lic ants review

application, to the effect that the investigation was halted during the period


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July November because of the intervention of the legal representatives of

bo th ap plic ant and c omp lainant.

Again, the fact that the investigation was never stopped, deprives the

complaint of most of its substance and cannot be used as a ground for the

relief c laimed .

No wonder that the learned judges in the Court a quo ignored this complaint

and d id no t comment on it or the follow ing c omplaint at a ll.

2. The p residing magistrate was b iased aga inst theapplicant.

This ground is not c overed b y the notice of a pp ea l but wa s argued be fore

us. Althoug h it is the refo re no t nec essa ry to d ec ide this issue, som e b rief

rema rks ma y be ap propriate .

In the notice o f app ea l befo re us, the a lleg ed irreg ula rities we re referred to in a

very gene ra l sense w ith only a spec ific referenc e to o ne a lleg ed irreg ula rity. In

this reg ard the not ic e rea d :

In as far as the learned judges had a discretion once they foundthat the trial did not take place within a reasonable time, thelearned Judges erred in not releasing the appellant fromprosec ution, pa rticularly in c irc umstanc es where:


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(a ) as a result of pre-tria l irreg ularities, the mislea d ing of theCourt and the State and / or the prosec utors ac ting o n be halfof the second respondent, it was an appropriate case torelease the appellant without being necessary to determine

whether or not the appellant will suffer trial relatedprejudice ;

This com p laint aga inst the m agistrate, as I und ersta nd it, is based on the

alleged fact that she was before her elevation to the bench, a prosecutor,

serving as such under Imalwa, the Deputy Prosecutor-General for the region,

and her refusal to allow certain statements to be handed in by the defence

whilst a llow ing othe rs which we re ha nded in by the Sta te.

The fa c t is tha t the sta tem ents handed in by the Sta te were hand ed in by

c onsent and those by the de fence were ob jec ted a ga inst. It could not be

contended by counsel for the applicant that the statements which the

de fence w ished to hand up, we re a dm issible.

But it is not necessary to take the argument further except to say that this a

flimsy argument to support a complaint of so serious an allegation against the

presiding magistrate.

In any event, should the trial against the applicant proceed, it will take place

before another Court, being the Regional Court, and another presiding

ma gistrate. If there wa s any p rejudice a t all, it would relate to pre-trial

prejudice in regard to the o rde r relating to the c ond itions of b ail ma de by the

sa id m agistra te in the rem itted p roc eed ings. It will not a mount to tria l related


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prejudice or exc ep tional circ umsta nces, which sta nding a lone o r in conjunct ion

with other grounds, justify an order by this Court for a permanent stay of the

prosecution.

The a pp ellant and her legal ad visers had ma de muc h of the so c alled

weakness of the case against her, mostly based on concessions made in cross-

examination by the investigating officer Mulimina when he testified in the

rem itta l p roc eed ings. One must bear in mind tha t the ap pellant a nd her sa id

adviser now p urported to rely on a witness whom they ha ve soug ht to disc red it

at the sam e time.

Furthermore the concessions he had made, may be due to lack of expert

knowledge regarding legal questions and cannot be substituted for the view of

Advo c ate January, the Deputy Prosec utor-Gene ral atta c hed to the staff o f the

Prosecutor-General in Windhoek, who had the responsibility to evaluate the

c ase when the investiga tion wa s c om pleted . He sta ted in his a ffidavit in

op position to appellant review , that in his op inion there wa s a prima fac iecase.

Consequently the Prosecutor-General, who had the exclusive jurisdiction to

de c ide w hether to p rosec ute or not, de c ide d to p rosec ute.

In July 2001 the Sta te was rea dy to p roc eed o n an a va ilab le da te a nd the trial

was then set down for October 2001, after consultation with the legal advisors

of both ac c used .


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Appe llant up to tha t time had refused to m ake a stateme nt to the investiga ting

officer, outlining her defence, and so assisting in the conclusion of the

investigat ion a nd the d ec ision to be ta ken by the Prosec utor-General.

The time wa s now op po rtune to b e served with all the sta tem ents relied on b y

the Sta te and to request further pa rticulars. If the Sta te d id no t co mp ly

satisfactorily with such request, the appellant could have made use of the

me ans and remed ies ava ilab le in our law. If pa rticulars we re insufficient , or the

c harge as supplemente d b y pa rticulars d id no t d isc lose a c rime or offenc e, the

applicant could apply to Court for the dismissal of the charge, without going

through the stress and e xpense o f a t ria l. Furthermore, the applic ant a rme d

with these sta tem ents and further pa rticulars, co uld app ly for a p ermanent sta y

of the prosecution.

Ultimately, if it turns out that there was no case against the appellant, the trial

c ould be b roug ht to a spe ed y conc lusion. The Prosec utor-General c ould even

be sued for damages for malicious prosecution if it turns out that the

prosecution was groundless and mala fide. If the tria l runs its full course, the

ac c used m ay be a c quitted. If not and she is c onvic ted a nd sentenc ed , the

convictions and sentences may be set aside on appeal not only on the

me rits, but on the grounds tha t the ac c used d id no t have a fair tria l. Moneta ry

c ompe nsation c ould then b e a pp lied for and ordered in terms of a rt. 25(4) of

the Namibian Constitution.


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If the applicant went through some of these stages, she would also have been

in a much better position as at present to apply for a permanent stay of

p rosec ution. Unfortunate ly, the applic ant and her leg a l advisers app lied for

review w ithout a nd b efore using the a foresa id p roc ed ures. They jump ed the

gun idioma tic ally spe aking a nd b y do ing so, have prolonged the d elay and

the a go ny involved in it.

SECTION E:

CONCLUSION

I am not satisfied that the applicant had proved that there was an

unrea sona b le delay fo r whic h the Sta te wa s responsib le during the period July

2000, - Oc tober 2001. I must stress however, tha t a d elay of 16 months will in

mo st c ases, constitute an unrea sona b le d elay p rovided the Sta te is

responsible for it. My conc lusion in this c ase tha t unrea sonable de lay wa s not

proved by the applicant is made in the light of all the unusual circumstances

present in this case.

Although the appellant was allowed out on bail in due course after arrest, the

conditions of bail regarding reporting twice a day, later reduced to once a

da y, and her continued sep aration from her husba nd and c hildren during the

whole period without being allowed to visit them in England was an extreme

hardship throughout the whole period w hen ap pellant was awa iting tria l. But

no a llega tion wa s ma de or evidenc e p rod uced that the husba nd o f ap plica nt


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and her children were deprived by states action or inaction to visit the

app lica nt in Namibia d uring the p eriod tha t she wa s aw aiting trial.

On the othe r hand muc h of the prejudice suffered by the a pp ellant w as due to

systemic delay, which was within reasonable limits and to which the appellant

and he r leg a l advisers had c ontributed .

I c onc lude that the p rejudice suffered by the ap pe llant wa s not irrep arab le t rial

related prejudice and that there are also no other exceptional circumstances

entitling the appellant to a permanent stay of prosecution, whether in terms of

a rtic le 12 (1)(b) or article 5 rea d with a rtic

Malama-Kean v The State

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Transcript of Malama-Kean v The State