CONSTITUTIONAL LAW

MARGARET MALAMA-KEAN
APPLICANT

and

THE MAGISTRATE FOR THE DISTRICT OF

OSHAKATI N.O.

THE PROSECUTOR-GENERAL

FIRST RESPONDENT

SECOND RESPONDENT

1. The Notice of Motion is amended by the insertion of the words "and/or the decision of the first respondent on 5th July 2001" after the word "proceedings" in paragraph 2 thereof;

2.	The order of the first respondent made in the Magistrate's Court,
Oshakati, in case no. 491B/2000 on 5th July 2001 refusing to release the
applicant under Article 12(l)(b) of the Constitution from the conditions
of her bail is set aside and substituted for the following order:

"The accused is released on bail in the amount ofN$50 000.00 and she is warned to appear in the Regional Magistrate's Court at Oshakati on 13 July 2001, failing which, she may be arrested and her bail may be forfeited";
2.	The applicant is released in terms of Article 12( 1 )(b) of the Constitution from all the conditions of her bail other than those contemplated in the order under paragraph 2;
3.	The second respondent is ordered to pay the costs of the application."

We said that we would give our reasons for making the order at a later date. Our reasons are as follows.

We heard the application on 31s1 August simultaneously with an appeal brought by the applicant against the order of the first respondent made on 5th July and referred to in paragraph 2 of our order made on 7th September. When dealing with the background I will extract certain facts which are to be found in the appeal record.

The applicant is a Zambian citizen married to a British national. They have six year old twins and their home is in the United Kingdom. In February, 1997 the applicant was appointed as Chief Executive Officer of a Non-Governmental Organisation called CD Namibia which had its offices at Ongwediva. She lived there with her husband and children and her contract was due to expire at the end of July, 2000. According to the applicant, she discovered some evidence of financial irregularities at CD Namibia in March, 2000 and made a report to the board as a result of which the finance officer, Ndamona Ndeulita, was suspended. An internal investigation began. Then on 27th June, 2000 the applicant was arrested on suspicion of having committed theft or fraud. She appeared before the Oshakati Magistrate's Court and was remanded in custody. On 4th July the
State opposed an application for bail on several grounds, including the lengthy period of time it would take to complete the investigation, and the applicant's legal representative did not pursue the application. On 9th August a further application for bail was made and this time the State did not oppose. Bail was granted in an amount of NS150 000,00 and the applicant was required to report twice daily at Oshakati Police Station, to surrender her passport, not to leave the District of Oshakati without permission and not to enter the premises of CD Namibia. The case was adjourned to 14th August. On that day the public prosecutor informed the court that the investigation was incomplete and there was a further adjournment to 12lh September. On that date the public prosecutor informed the court that he did not know how far the investigation had progressed and there was a further adjournment to 16th October. Further adjournments were granted at the instance of the State on 16lh October and 29th November and it was during the latter month that the applicant's husband was required to leave Namibia with the children because their temporary visas had expired. They returned to the United Kingdom.

On 7th December the applicant's legal representative informed the court that CD Namibia, the complainant in the matter, had withdrawn its complaint and he asked that all conditions of bail be removed except that the applicant be required to report once daily. The State agreed that the reporting condition be reduced to once daily but otherwise opposed the application. It was pointed out that it was for the Prosecutor-General to decide whether the case against the applicant should be withdrawn and as it involved N$l 000 000,00 all the other conditions of bail should remain in place. This submission was upheld by the magistrate and the case was postponed to 19th December for the finalisation of the investigation.

On 19th December Ndamona Ndeulita was joined as second accused and she was granted bail of NS50 000. The State was still not ready to proceed and the case was postponed to lstFebruary,
2001. On that day the public prosecutor informed the court that the case was still under investigation and a further adjournment was granted to 9lh April. On 9lh April the position remained unchanged but the applicant had had enough. Her legal representative opposed the State's application for a further three month postponement. The applicant was called to testify. She said that the investigation had been continuing for nine months and no explanation for the delay had been given. CD Namibia had conducted its own internal investigation and she considered that four weeks would have been sufficient to complete the police investigation. She had not seen her husband and children for five months and this caused her great distress. However, the magistrate granted the State's application and the case was postponed to 24th July.

The applicant then appealed against the magistrate's order granting a postponement and the appeal came before the High Court on 15th June. Also before court on that day was an application by the State that the matter be remitted to the Magistrate's Court for a proper hearing of the applicationfor postponement. The basis for that application was an allegation that the magistrate had erred by allowing the applicant to testify before the investigating officer was called and then compounded that error by refusing to allow the public prosecutor to call the investigating officer. The High Court ruled in favour of the State and remitted the matter to the Magistrate's Court for further consideration.

On 26th June the application for a postponement resumed in the Magistrate's Court and the State called the investigating officer, Inspector Mulimina. His explanation for the delay in completing the investigation was that in July, 2000 he was told by the lawyer acting for CD Namibia and the lawyer acting for the applicant that they were endeavouring to settle the matter and that he should put the investigation on hold. This, he said, he did. Then in November he received a letter from CD Namibia's lawyer stating that its differences with the applicant had been settled and that it wished to withdraw all criminal charges against the applicant. The matter was referred to the Prosecutor-General 's office and it was only in December that he was instructed to continue with the investigation. When the application for a postponement was made in April, 2001 he had only spent four months on the investigation and this was not enough. He required a further three months to complete it and this led to the application for a three month postponement.

Mulimina also testified that there was a prima facie case against the applicant and gave details. The amount involved, he said, was N$2 800 000,00. However, in cross-examination the Inspector changed tack and said that it was not his case that the applicant had committed fraud or theft in an amount of N$2 800 000,00 and in re-examination he went so far as to say that there was only a prima facie case against the applicant in connection with the sale of a Mazda motor vehicle for the sum of N$22 000,00. Also in cross-examination Mulimina conceded that had the applicant wished to do so she could have absconded to England. He trusted her not to do so.

The lawyer who had acted for CD Namibia, Johannes Greyling, was also called by the State to give evidence. He said that he had informed Mulimina that settlement negotiations between the complainant and the applicant were about to take place and sought his permission which was granted. He also told Mulimina that he thought it would be a waste of time to continue with the investigation if a settlement was going to be reached but he did not tell him to stop the investigation. That, he said, was in the discretion of the investigating officer and the State.

One other matter of some relevance which emerged during the June hearing was that the investigation had been completed and the docket had been submitted to the Prosecutor-General for consideration.
At the conclusion of the hearing counsel for the applicant submitted that any further postponement should be refused, alternatively that if a postponement was to be granted that the applicant be "released" in terms of Article 12(1 )(b) of the Constitution.

That Sub-Article provides:

"A trial referred to in Sub-Article (a) hereof shall take place within a reasonable time, failing which the accused shall be released."

A criminal trial falls squarely within Sub-Article (a).

The magistrate gave her nding on 5,h July. With regard to the concessions made by Mulimina she said that the court:

"is not bound by the suggestions of the investigator and if the court finds that the suggestion are not in the interest of justice, the court can rule otherwise."

The magistrate then went on to say that there were no grounds for refusing a postponement as the investigation had been completed and the docket was with the Prosecutor-General.  As for the application brought in terms of Article 12(l)(b) she ruled that the delay in completing the investigation was not caused by the State and that it would not be in the interest of the administration of justice to order the release of the applicant.
Having given her ruling the magistrate was then informed by the Deputy Prosecutor-General that the Prosecutor-General had decided that the applicant should be arraigned in the Regional Court on charges of theft of N$2 894 740,10 and corruption. The Deputy Prosecutor-General asked for the case to be transferred to that court. The magistrate then made such an order and the applicant was required to appear at the Regional Court on 13th July. On that date the trial was fixed for 22nd October, 2001. That date is approximately sixteen months after the arrest of the applicant.

That brings me to the present application which was launched on 91 August. The principal reason for the delay in launching it was that the typed record of the June hearing in the Magistrate's Court did not become available until the end of July. In the Notice of Motion the applicant sought the following relief:

"1. Condoning the Applicant's non-compliance with the rides of the High Court and ordering that this matter should be heard as one of urgency as envisaged in Rule 6(12) of the rules of the High Court of Namibia.
4.	Ordering that the proceedings in the Magistrate's Court for the district of Oshakati, held at Oshakati in case number 491/B/2000 (State versus Margaret Malama-Kean) be set aside.
5.	Ordering that the Applicant be released, forthwith, as envisaged in Article 12(l)(b) of the Constitution of the Republic of Namibia.
6.	Ordering the Second Respondent to pay: (i)      the costs of this application;
(ii)	the costs of the High Court proceedings incurred by the
Applicant in the appeal lodged by the Applicant against the
nding or order of the First Respondent handed down on 9
April 2001;

(iii)	the costs incurred by the Applicant in all the proceedings
conducted in the Magistrate's Court for the district of
Oshakati after 30 July 2000, to date, on a scale as between
attorney and own client.

The respondents' answering affidavit was sworn by Olyvia Imwala, a Deputy Prosecutor-General. She annexes an affidavit sworn by Mulimina. In that affidavit he states that Thambapilai requested him in July, 2000 to suspend the investigation and that he heeded the request. Mulimina then adds that during the period from the end of July, 2000 he did in fact obtain certain statements and documents concerning the investigation but only those which were easily obtainable. No mention is made of this in the affidavit of Mulimina which was placed before the High Court on 15th June in support of the State's application to have the case remitted and it is in stark contrast to the Inspector's testimony in the Magistrate's Court. In that testimony he stated in terms that:

"I stopped the investigation as it was put on hold."

and

"I only investigated this case as from December to March 2001."

The admission made by Mulimina that he did in fact obtain certain statements and documents must be viewed in the light of the fact that the State provided the applicant with a copy of the investigation diary on 24th August, 2001, the very same day that Mulimina swore his affidavit. This diaiy tells a very different story to that told by Mulimina when he testified in the Magistrate's Court. According to the investigation diary, which is annexed to the applicant's replying affidavit, Mulimina took at least twenty statements between the end of July and November, 2000 and also obtained a variety of documents. If the investigation diary is correct, and there is no reason to think that it is not, Mulimina withheld this vital information when making the affidavit which was placed before the High Court and also when testifying in the Magistrate's Court. And it is also highly significant that the alleged instruction given to Mulimina to stop the investigation finds no mention in the diary.

The affidavits which have been filed do, of course, reveal a dispute of fact and the general rule is that relief may only be granted if the facts as stated by the respondent together with the admitted facts in the applicant's affidavits justify an order. However, there are exceptions to this general rule. Where a statement in the respondent's affidavits is clearly untenable then the Court may

Further, even if we were to decide this matter on the basis of the alleged instruction by the defence lawyer to stop investigations we would be driven to the same conclusion. Once the State commences criminal proceedings it has a duty actively to pursue those proceedings. It is not for the State or its officials to take instructions and allow the proceedings to lie dormant.

Time started to run on 27th June, 2000 when the applicant was arrested. At that stagethe police had not started their investigation. The arrest was made on the complaint of CD Namibia and was in

the nature of a pre-emptive strike due to the fairly imminent departure of the applicant from the country. In these circumstances there was a heavy burden on the State to pursue the investigation with vigour and complete it as soon as was reasonably possible. Yet it was not until June of the following year that the investigation was completed and the earliest trial date which could be given was October, 2001, some sixteen months after the applicant's arrest. That, in my view, is delay which is presumptively prejudicial.

"If a person has been charged very early in the complex case that has been inadequately prepared, and there is no compelling reason for this, a court should not allow the complexity of the case to justify an over-lengthy delay."

Next, there is the neglect on the part of the investigation officer to pursue the in\estigation with vigour. The ultimate responsibility for such neglect must rest with the State, not the applicant.

Then there is the question of the applicant asserting her rights. While it is true that it was not until April, 2001 that the applicant resisted an application by the State for a further postponement she and her lawyers had, in the year 2000, been misled by statements by the public prosecutor suggesting that the investigation was continuing when in fact it was not. As the applicant's lawyer, Thambapilai, states, and it is stated on oath, had he been aware of the fact that the investigation had been halted he would have objected to the postponements.
Coming to the question of prejudice suffered by the applicant due to the delay, there are present tre obvious kinds of prejudice such as social prejudice and the requirement in her conditions of bail that she reports daily to the police. But looming larger is the fact that her husband and children were required to leave Namibia and as a result of the delay she has been separated from her family month after month. Also, she has not been in a position to take gainful employment.

Still under the heading of prejudice lies the question of trial-related prejudice. The applicant alleges that due to the inordinate delay it will be difficult, if not impossible, to trace potential defence witnesses many of whom will have left the country as CD Namibia has, since her arrest, ceased its operations. The applicant can do no more than generalize because at the stage when this application was launched she was not in possession of the prosecution docket and therefore had no knowledge of the details of the case being presented against her. Trial-related prejudice is only speculative at this stage.

"The Namibian Constitution provides a specific remedy for failure to bring to trial within a reasonable time, namely: "The accused shall be released."

As Mr Small, who appeared for the State, pointed out to us by reference to certain dictionaries, the term 'released' can have a variety of meanings and could, as O'Linn J rather tentatively concluded, mean freed from custody or relieved from certain onerous conditions of bail. But when regard is had to the underlying purpose of art 12( 1 )(b) I am of the view that a broader, more liberal, construction should be given to the word. Once the main purpose of the sub-article is identified as being not only to minimize the possibility of lengthy pre-trial incarceration and to curtail restrictions placed on an accused who is on bail but also to reduce the inconvenience, social stigma and other pressures which he is likely to suffer and to advance the prospect of a fair hearing, then it seems to me that 'released' must mean released from further prosecution for the offence with which he is charged. It is only by giving the term this wider meaning that the full purpose of the sub-article is met. Release from custody or from onerous conditions of bail only meets part of the purpose of the sub-article."

"provide guidelines as to the procedure to be followed and the legal principles applicable to an application for the permanent stay of criminal proceedings in terms of an accused person's right to a fair trial in terms of Article 25(2) of the Namibian Constitution." The application then posed a number of questions.

In contending that the Court had jurisdiction to provide guidelines and lay down legal principles, counsel for the applicants purported to rely on Rule 33(4) of the High Court Rules but in its judgment, which was delivered on 14 December 2000, the Court held that that Rule was not applicable. The Court then went on to consider whether the word "release" in Article 12(1 )(b) means release from prosecution and made the declaration to which I have already referred purporting to do so, according to the written judgment, in terms of section 16(4) of the High Court Act. The reference to (4) must have been a mistaken reference to (d).

The material part of section 16 reads as follows:

"The High Court shall have jurisdiction over all persons residing or being in and in relation to all causes arising and all offences triable within Namibia and all other matters of which it may according to law take cognizance, and shall, in addition to any powers of jurisdiction which may be vested in it by law, have power-

(a)      	

(b)      	
(d) in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination."

I very much doubt whether the declaration made by the Court constituted a determination of an "existing, fumre or contingent right or obligation" but even if it does it is quite clear that in the application before the Court there was no person, let alone an interested person, seeking such a determination. The meaning of "release" in Article 12(l)(b) was not a question before the Court. And neither counsel for the applicants nor the Deputy Prosecutor-General, Mr Small, who appeared for the State, argued for the restrictive construction which the Court ultimately gave to Article 12(l)(b). It must follow that what was said by the Court in that connection was entirely obiter.
Quite apart from the foregoing, and I say this with great respect for the learned judges concerned, I am convinced that the decision was wrong.   The principal reasoning appears in the following
passage:

a broad and liberal spirit should inspire those whose duty it is to interpret the Constitution; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purposes of supplying omissions or correcting supposed errors.'

These two concepts namely 'release, because the trial has not taken place within a reasonable time' and 'acquit' where the trial has been completed appear in the same Article. It is therefore logical to contrast the concepts and not to give them the same meaning.

'	when the meaning of a section is plain	the mere fact that there may be a

An accused embezzles and steals N$ 10,000,000-00 over a period of years and invests it in a bank in Europe. He is arrested but due to his cunning, the investigation is involved. A person cannot take advantage of his own bad faith. Therefore any delay in his trial caused by his own cunning will not accrue to his benefit in deciding whether there has been an unreasonable delay. The State, however, similarly cannot benefit from its own ineptitude and if due to such ineptitude the investigation after his arrest is unduly and unreasonably delayed, the accused would be entitled to his release in terms of Article 12(1 )(b). If that meant that prosecution was permanently stayed, the accused would be able to enjoy the spoils of his crime with impunity while still committing theft. This could never have been intended by the framers of the Constitution."

In its reasoning the Court proceeded on the supposition that the ordinary meaning of "released" in the context of the Sub-Article is released from arrest or bail. In making this supposition the Court appears to have considered that an acquittal and a permanent stay of prosecution amount to the same thing. The Court said:

"These two concepts namely 'release, because the trial has not taken place within a reasonable time' and 'acquit' where the trial has been completed appear in the same Article. It is therefore logical to contrast the concepts and not to give them the same meaning."

the type of, and extent of, prejudice suffered as a result of the unreasonable delay in bringing him to trial. In the instant case we considered that appropriate relief would be to remove most of the bail conditions leaving only a monetary deposit of NS50 000. If Mulimina is right in his estimation of the applicant she can be trusted to return to Namibia for her trial.
HANNAH, J

Mr Botes submitted that even if we should find in favour of the applicant we should not make a costs order against either of the respondents. Neither, he submitted, was responsible for the delay. That responsibility lay with the police. In my opinion, that submission is only partly correct. Although direct responsibility for the delay lay with the police those who represented the second respondent at the numerous applications for postponement could have done much more to ascertain the true state of affairs and the second respondent did, of course, choose to oppose this application. Accordingly, we saw fit to order the second respondent to pay the applicant's costs of the application. However, we could find no basis for awarding the costs sought in prayer 4(H) and (iii) of the Notice of Motion.

MAINGA, J

For the applicant:	Advocate R Heathcote

Instructed by:	Messrs H Barnard & Partners

For the first and second respondent: Instructed by:
Advocate L C Botes

The Government Attorney