- April 28, 2023
- |Concise Law Reports (CLR), Criminal Law And Procedure
The applicant brought an application for a stay of prosecution in terms of the Constitution and further sought a rule nisi calling upon respondents to show cause why the applicant’s detention should not be declared unlawful and why the applicant should not be released from custody emanating from alleged unlawful arrest.
In September 2015, the applicant attended to an interview at the Office of the Anti-Corruption Commission (ACC). His answers at the ACC were reduced to writing in the form of an affidavit. On 17 September 2018, a warrant of arrest was issued against the applicant in order to be taken to court and prosecuted on charges of fraud and corruption. On 3 May 2021, the applicant was thereafter arrested. Subsequent to several court appearances, mainly for purposes of the bail application, the applicant escaped from police custody on 5 November 2021.
On 17 September 2018, a warrant of arrest was issued against the applicant in order to be taken to court and prosecuted on charges of fraud and corruption. On 3 May 2021, the applicant was thereafter arrested. Subsequent to several court appearances, mainly for purposes of the bail application, the applicant escaped from police custody on 5 November 2021.
He was re-arrested on 24 March 2022 on a purported warrant of arrest. Dissatisfied with the legality of the warrant of arrest, the court, on 29 March 2022, struck the applicant’s matter from the roll and ordered his release from police custody. On the same day, 29 March 2022, the applicant was re-arrested on another warrant of arrest during the same day of his release.
On 12 May 2022, the applicant launched this application for a permanent stay of prosecution. The applicant sought the following:
- Ordering permanent stay of prosecution as contemplated in terms of Act (sic) 12(1) of the Namibian Constitution.
- Issuing a rule nisi calling upon respondents to show cause on 20 May 2022, why the applicant’s detention should not be declared unlawful and why the applicant should not be released from custody of which was a result of unlawful arrest.’
This matter, at its heart, raised a fundamental question as to whether this is a proper case for the applicant to be granted the relief sought of a permanent stay of prosecution. The relief is sought against the backdrop of the averment that the trial of the applicant did not take place within a reasonable time as guaranteed by the Constitution and further that there are exceptional circumstances that entitle the applicant to be released from detention. The application was opposed.
Analysis
SIBEYA J acknowledged the difficulty of this case by stating that the applicant conflated issues raised, some of which were clearly irrelevant to the determination of the relief sought. The court, however, endeavored to address the ones that it considered material and relevant to the relief sought by the applicant.
‘[99] It is a right enshrined in Art 12(1)(b) of the Constitution that a trial shall take place within a reasonable time, failing which the accused shall be released. An accused is entitled to a speedy trial. When an accused is subjected to an unreasonably long delay without a trial taking place, he or she may invoke Art 12(1)(b) and seek his or her release.
[100] In S v Myburgh 2008 (2) NR 592 (SC), the Supreme Court stated that an order of a permanent stay of prosecution with prejudice is competent where a trial has not taken place within a reasonable time and where, as a result, there exists irreparable trial prejudice or where there are exceptional circumstances for a permanent stay of prosecution to be granted.
In Heidenreich S v Heidenreich 1995 NR 234 (HC) (1996 (2) SACR 171 it was said:
”Reasonable is of course a relative term and what constitutes a reasonable time for the purposes of art 12(1)(b) must be determined according to the facts of each individual case. The courts must endeavor to balance the fundamental right of an accused to be tried within a reasonable time against the public interest in the attainment of justice in the context of the prevailing social, economic, and cultural conditions to be found in Namibia… What is required at the end of the day is a value judgment…”
It is apparent from the above authorities that for the applicant to succeed in his application for an order of stay of prosecution, he must prove that:
a) his trial has not taken place within a reasonable time; and
b) there is irreparable trial prejudice; or
c) there are exceptional circumstances that justify an order of a permanent stay of prosecution.
The interview of the applicant and submission of his affidavit to the ACC
The major part of the applicant’s complaint revolved around the allegation that when he was called to the offices of the ACC in September 2015, he was informed by Ms. Kanyangela, upon asking during the interview, that he was being treated as a witness and not as a suspect in the Pieterse matter. The applicant complained at length that Ms. Kanyangela failed to warn him of his rights against self-incrimination or not to answer questions that may expose him to a criminal charge as provided for in s 203 of the CPA, s 21(4) and 21(7) of the ACA, and 12(1)(d) of the Constitution.
The applicant further bemoaned that after drafting his affidavit, he signed it in the absence of Ms Kanyangela and it was not commissioned in his presence. He states that Ms. Kanyangela lied when she stated under oath that the applicant signed the said affidavit in her presence and she commissioned it in his presence. This led to the applicant registering a case of perjury against Ms Kanyangela. The applicant further avered that the warrant of arrest issued against him in 2018 resulted from a flawed investigation of Ms. Kanyangela. He further stated that the PG and the ACC have relied on his affidavit to pursue his prosecution, which affidavit prejudices him and which he would not have provided had he not been informed that he is a witness, not a suspect in the matter.
In the context of the applicant’s case, there were disputes of fact between the applicant and Ms. Kanyangela regarding the interview and submission of the applicant’s affidavit to the ACC. The court refers to previous legal decisions that state in motion proceedings, factual disputes can only be resolved if the facts admitted by both parties justify the order sought. The court found that Ms. Kanyangela’s disputes of fact are not bare denials, fictitious, or far-fetched, and therefore cannot be rejected outright. The court emphasized that the credibility of a witness is a matter for the trial court to determine, not the court hearing the application. Furthermore, there was no evidence that the applicant’s affidavit was used to obtain warrants of arrest or that the prosecution was based on the affidavit. The applicant had the opportunity to object to the admissibility of his affidavit during the trial if his rights were violated or if he was entrapped. The court concluded that the applicant’s complaints regarding the interview and affidavit do not contribute to proving that the trial has not taken place within a reasonable time or that there is irreparable trial prejudice. These complaints also did not present exceptional circumstances justifying the relief sought by the applicant.
Complaints about arrests
The applicant raised complaints about the lawfulness of his arrests on three occasions. Firstly, on May 1, 2021, the applicant was arrested without the original warrant of arrest being presented to him. Instead, a picture of the warrant of arrest was shown to him. The court found no merit in the claim that the arrest was unlawful and dismissed this complaint.
Secondly, on March 24, 2022, the applicant was arrested based on a purported warrant of arrest that was not signed by a magistrate. The court considered this arrest to be unlawful, as a warrant of arrest must be signed by a judicial officer. Consequently, the subsequent detention of the applicant and the court’s endorsement of the detention were also deemed unlawful.
On March 29, 2022, the magistrate found that the applicant was not lawfully arrested and ordered his immediate release. However, the applicant was subsequently arrested again on another warrant of arrest under a different case number and charge of escape from lawful custody. The legality of this latest warrant of arrest was not challenged, and the court found no merit in the applicant’s claim that his arrest and subsequent detention were marred by irregularities to the extent of being unlawful. While one arrest was deemed unlawful due to the lack of a magistrate’s signature on the warrant, the subsequent detention and arrest on a different warrant were considered lawful. The court concluded that the unlawful arrest and detention do not constitute exceptional circumstances justifying the relief sought by the applicant, such as a permanent stay of prosecution or release from custody.
Sibeya J opined that:
‘[153]…the established facts and circumstances of the applicant’s application are poles apart from the relief sought. The court found that the applicant did not get out of the starting blocks in his quest to prove that this is a matter befitting of granting the relief prayed for. On the contrary, the applicant’s case was antithetical to a claim of unreasonable delay of the trial by the PG.
[154] One gets the sense, from the application and for reasons unknown, that the applicant is not eager to have the trial commence. But without a doubt, in my view, there is no actionable unreasonable delay in this matter to start with the trial as envisaged in Art 12(1)(b) of the Constitution. I find that the applicant, at least from May 2022 to date (28 April 2023), bears the blame for unreasonably delaying the commencement of the trial by launching this meritless application and in the same breath insisting on staying the trial.
[155] In the wise words of Malcolm X, the truth and justice applicable in this matter, in my considered view, is that the applicant failed to prove entitlement to a release in terms of Art 12(1)(b) of the Constitution or the declaratory relief sought. It follows that the applicant’s application lacks merit and falls to be dismissed.
It was therefore held that:
- Failure to warn an offender of the right against self-incrimination may result in the affidavit obtained to be ruled inadmissible during the trial, thus the applicant has a remedy and cannot claim irreparable trial prejudice.
- There is no merit in the claim that the applicant was unlawfully arrested on 1 May 2021 and that his subsequent detention was, as a matter of consequence, unlawful, therefore, his complaint about the lawfulness of his arrest occasioned on 1 May 2021, ought to be dismissed.
- Held further that: where an applicant launches an application for stay of prosecution that is hopeless ab initio and insists on staying the trial, he or she bears the blame for unreasonably delaying the commencement of the trial while the application is pending.
- There is no actionable unreasonable delay in this matter to start with the trial as envisaged in Art 12(1)(b) of the Constitution.
- The applicant failed to prove entitlement to a release in terms of Art 12(1)(b) of the Constitution or the declaratory relief sought, resultantly, his application lacks merit and falls to be dismissed.
- Held further that: the applicant made no case for declaratory relief of release sought. Application dismissed.
As a result, the applicant’s application for a stay of prosecution, to be released with immediate effect and for an order for respondents to file reasons why he should not be released, is dismissed without costs.