Sibelelo v S (HC-MD-CRI-APP-CAL 2020-00071) [2020] NAHCMD ...



4552950-5715000REPUBLIC OF NAMIBIAHIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKAPPEAL AGAINST BAIL APPLICATION RULINGCase no: HC-MD-CRI-APP-CAL 2020/00071In the matter between:LEEMAN SIBELELO APPLICANT andTHE STATERESPONDENTNeutral citation:Sibelelo v S (HC-MD-CRI-APP-CAL-2020/00071) [2020] NAHCMD 463 (8 October 2020)Coram:USIKU J Heard: 14 September 2020Delivered:8 October 2020Flynote: Criminal Procedure – Bail – Appeal ? against magistrate’s refusal to grant bail – High Court hearing appeal can only set magistrate’s decision aside if it was clearly wrong – Onus – Applicant bears the onus on preponderance of probability to show why he should be released on bail – Placing onus on the accused accordingly not in conflict with the Constitution – Magistrate’s decision could not be faulted – Appeal dismissed.Summary:Criminal Procedure – Bail – The appellant appeared in the Gobabis Magistrate’s Court where he stood charged on one count of Rape. He was remanded in custody on several occasions after bail was refused, whereafter he lodged an application against the refusal of bail through his legal representative Mr Eliaser Shiikwa of the Directorate of Legal Aid, Gobabis.ORDERAppeal against the magistrate’s refusal to grant the applicant bail is dismissed.BAIL APPLICATION RULINGUSIKU J[1]When the appeal was heard, Mr Eliaser Shiikwa presented a special power of attorney as the appellant was not present before the Court. Ms Moyo, appearing on behalf of the respondent, did not oppose the matter to proceed for hearing.[2]The respondent opposed the application on the ground that the offence with which the appellant is charged is of a serious nature and submitted further that the State has a strong case against the appellant, and that it will not be in the interests of the public or the administration of justice to release the applicant on bail. [3]In the notice of appeal, the appellant relied on the following grounds:(a)That the learned magistrate misdirected herself, alternatively erred in law or in fact by overemphasising the seriousness of the nature of the offence against the relevant facts before Court;(b)That the learned magistrate misdirected herself, alternatively erred in law or in fact by ignoring or applying lip service to the appellant’s personal circumstance tendered viva voce under oath;(c)That the learned magistrate misdirected herself, alternatively erred in law or in fact by applying the approach of De Klerk v State against the circumstances and relevant facts before Court, ignoring the authority in support of the approach on the same aspects submitted by defence;(d)That the learned magistrate misdirected herself, alternatively erred in law or in fact by finding that the appellant has not shown on a balance of probabilities that it would be in the interest of the public or the administration of justice that he be admitted to bail. [4]I must state that the appellant from the word go, had rightly conceded that grounds 3, 4 and 7 respectively are not grounds of appeal at all as these grounds do not meet the requirements as per our case law. Thus I do not intend to pursue them any further.[5]It is common cause that appeals with regard to refusal to bail are regulated by s 65 which reads:‘1(a) Accused who consider himself aggrieved by the refusal by a Lower Court to admit him to bail or by the imposition by such Court of a condition of bail… may appeal against such refusal or imposition of such condition to the Superior Court having jurisdiction or to any judge of that court if the Court is not than sitting;(b)The appeal may be heard by a single judge;(c)….’[6]Subsection 4 thereof provides that the Court or judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such Court or judge is satisfied that the decision was wrong, in which event the Court or judge shall give the decision which in its or his/her opinion should have been given.[7]In casu, the appellant is attacking the court a quo for having failed to give sufficient weight to his personal circumstances, most importantly the fact that he has children he has been looking after. It has now emerged that the applicant has been in custody for about 13 months and that the children he claims to be depended on him, have been in the custody and care of their respective mothers ever since his arrest. It does not appear that the applicant’s continuous incarceration has impacted so much on their wellbeing.[8]It is abundantly clear from our case law that the nature of the crime alleged to have been committed and the strength of the State’s case are extremely relevant at the stage when bail is being considered. The applicant faces a count of rape allegedly committed against a vulnerable member of society aged eight years at the time of the incident. The manner in which the alleged crime has been described to have been committed, leaves one to seriously wonder where a child could be said to be safe if not in her own residence. In the reasons provided for by the court a quo, I find no misdirection on the facts or the law and therefore no reason to conclude that the court a quo’s refusal to admit the applicant to bail was wrong.[9]In S v Botha, O’ Linn J (as he then was) had the following to say:‘In such instances the letting out on bail of a person who is accused of a callous and brutal murder, or a person who continues to commit crimes, creates the perception that the public at large is at the mercy of such criminals and that neither the police nor the courts can effectively protect them. Considerations such as the public interest may, if there is proper evidence before the Court, lead to the refusal of bail even where the possibility of abscondment or interference may be remote.’ I share the same sentiments expressed in the above quote and endorse them.[10]The applicant herein is charged with a case of Rape, which too, is a serious offence. Similarly in the matter of S v Shaduka the Court held as follows:‘Since the inquiry is now wider, a Court will be entitled to refuse bail in certain circumstances even where there may be remote possibility that an accused will abscond or interfere with police investigations. The crucial criterion is thus the opinion of the presiding officer whether it would be in the interests of the public or the administration of justice to refuse bail.’ These sentiments were expressed with regard to the provisions of s 61 of the Criminal Procedure Act, as amended.[11]Furthermore, when it comes to the issue of the granting or refusal of bail, the Court should be shaped by the spirit of our times and thus should be responsive to the outlook of the community to which it belongs. [12]Having regard to all the relevant facts in this bail appeal, this Court is therefore of the opinion that it will not be in the interest of the community and the administration of justice to release the applicant on bail, more so having regard to the fact that the alleged victim and her mother have expressed fear that the applicant may try to intimidate them once released on bail. After all, an attempt had already been made towards them when he allegedly offered them payment prior to his incarceration. [13]Consequently, the appeal against the magistrate’s refusal to grant the applicant bail is dismissed.----------------------------------D N USIKUJudgeAPPEARANCES:APPLICANT:E ShiikwaInstructed by Directorate of Legal AidGobabis RESPONDENT:C MoyoOffice of the Prosecutor-General Windhoek ................
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