REPUBLIC OF NAMIBIA REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

Case No: CA 16/2013

JOHANNA TUYENIKONWENE LUKAS

versus

THE STATE

Neutral citation: Lukas v State (CA 16-2013) [2015] NAHCMD 35 (26 February
2015)

Coram: SHIVUTE, J

Heard: 13 February 2015

Delivered: 13 February 2015

Reasons Released: 26 February 2015

Fly note: Bail – Appellant appealing against the decision of the magistrate
refusing to release her on bail – Appeal being removed from the roll due to non
appearance of appellant and her legal representative – Appellant lodging
application for bail in this court before another Judge based on new facts –
Matter pending before this court for trial – Bail declined by the learned Judge
hearing the application – Evidence on which bail was refused by magistrate
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considered by the judge hearing the application based on new facts -

Appellant reviving appeal against decision of magistrate in this court – Court
holding that appeal deemed to have been abandoned and hearing thereof
amounting to reviewing decision of this Court – Thus court declining to hear
the appeal – Options available – Appellant to appeal against the refusal of bail
by this court to the supreme court or to lodge fresh application based on new
facts before this court.

Summary: Bail – Appeal against the decision of the magistrate – The matter
was struck from the roll due to non-appearance of the appellant and her legal
representative – Meanwhile appellant was arraigned in this court for trial –
Appellant lodged fresh application based on new facts before a different
judge– Learned judge declined to grant bail to appellant – Appellant revived
the appeal against the magistrate’s decision – The reasons advanced by the
magistrate for the refusal of bail considered by the judge who heard the
application based on new facts – Held: By lodging application based on new
facts, the appellant is deemed to have abandoned the appeal – Facts that
appellant seeks to put before court already considered by the learned judge
who heard the application based on new facts. This court has no jurisdiction
to review its decision or to hear an appeal in respect of its own decision –
Thus the court declined to hear the ‘appeal’ – Options available to appellant –
To appeal against the decision of this court when it denied bail based on new
facts to the Supreme Court or to lodge a fresh bail application based on new
facts, if any.

ORDER

This court declined to entertain the appeal and the matter was struck off roll.

BAIL APPEAL JUDGMENT

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SHIVUTE J:

[1] The appellant is indicted in this Court on 11 counts namely:

Five counts of trafficking in persons in contravention of the Prevention of Organised

Crime Act 29 of 2004, five counts of rape in contravention of the Combating of Rape
Act 8 of 2000 and one count of soliciting or enticing a child to the commission of a
sexual act or an indecent or immoral act in contravention of the Combating of
Immoral Practices Act 14 of 1980 as amended.

[2] Mr Ipumbu appears on behalf of the appellant whilst Ms Nyoni appears for the
respondent.

[3] Before the appellant was arraigned in this Court, she had applied for bail
before a magistrate and bail was denied. She then proceeded to lodge an appeal to
this Court against the magistrate’s decision.

[4] The bail appeal was set down for hearing on 3 June 2013. However, the
appellant and her legal representative failed to appear before Court that day. The
matter was therefore struck from the roll.

[5] Subsequent to the striking of the appeal from the roll, the appellant
approached this Court for bail application. The appellant was represented, however
her legal representative withdrew before the bail application could be heard. On the
date of hearing, the appellant proceeded with the bail application in person, based
on new facts. Bail application was refused on 5 November 2013 on the ground that
it was not in the interests of justice to admit the accused on bail.

[6] On 13 February 2015 the appellant revived the bail appeal against the
magistrate’s decision.

[7] Counsel for the respondent raised a point in limine, that the appellant by
lodging an application for bail in this Court based on new facts had indirectly
abandoned her appeal against the magistrate’s decision. Counsel for the
respondent argued that the appellant having lodged a fresh bail application in this
Court and that bail application having been refused, the appellant could not ignore
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the judgment of this Court and appeal or purport to appeal against the judgment of
the magistrate. Counsel further argued that the courses of action available to the
appellant is for her either to appeal against the decision of this Court or to approach
this Court with a fresh bail application based on new facts, if any.

[8] Counsel for the appellant argued that the appellant has the right to revive the
appeal against the decision of the magistrate despite the fact that the appellant was
denied bail in this Court by my brother Parker AJ when she applied on the basis of
new facts. He referred this Court to the matter of Makola v The State Case no
220/1994 unreported decision of the Supreme Court of South Africa (Appellate
Division) delivered on 20 May 1994 and to s 60(1) of the Criminal Procedure Act 51
of 1977.

[9] The provisions of s 60(1) of the Act read as follows:

“An accused who is in custody in respect of any offence may at his first appearance in a
lower Court or at any stage after such appearance, apply to such Court or if the proceedings
against the accused are pending in a superior Court, to that Court, to be released on bail in
respect of such offence...”

Counsel argued further that since the proceedings were pending before this Court it
was against that background that the appellant brought the application based on new
facts. It was again counsel’s argument that since the appeal was struck from the roll,
the appellant has the right to enrol it again.

[10] Counsel for the appellant argued that when the appellant applied for bail on
the basis of new facts, counsel for the respondent misled the Court inter alia by not
informing the Court that investigations were completed and that the possibility of
interfering with the state witnesses was no longer an issue and that because of the
alleged misrepresentations, the judge arrived at a wrong conclusion.

[11] Counsel for the appellant argued that in the Makola case supra, s 60(1) of the
Act was interpreted to mean that in a situation where an accused who is in custody
wants to be released on bail but he or she lodged a bail application in the Court of
first instance but later on the accused is arraigned in a superior court and the
proceedings have become pending in the superior court, that accused has a choice
of either lodging a bail application before the court where the proceedings are
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pending, in this case the High Court. Counsel contended that the State’s argument
that the appellant has indirectly abandoned her appeal is not supported by any
authority. Counsel continued with his argument that when this Court heard the
appeal it confined itself to the four corners of the new facts. It was further Counsel’s
argument that misdirection prevailed in the judgment of this Court due to misleading
evidence presented before Court and certain evidence that was withheld by the
State.

[12] Counsel for the State took exception to the submission of the alleged
misleading of the Court, contending that the Court gave its decision based on the
evidence presented before it and also the evidence presented during the bail
application in the Magistrate’s court.

[13] Having heard both counsel’s arguments the court declined to entertain the
appeal and struck the matter from the roll. I indicated that reasons for the ruling will
be given at a later stage. The reasons are as follows:

[14] The issue to be determined is whether this court has jurisdiction to entertain
the appeal against the decision of the magistrate whilst bail was already declined by
this court based on new facts.

[15] Section 60(1) of the Act is very clear. It says that the accused who is in
custody may apply to be released on bail in the court of the first instance, in this case
the magistrate’s court, either at his first appearance or at any stage after first
appearance. If the proceedings become pending in the superior court, such accused
can apply for bail in the superior court.

[16] The appellant in this case lodged an appeal against the decision of the court
a quo that was struck from the roll by this court because of non-appearance of the
appellant and her legal representative. After the matter was struck off the roll, the
appellant exercised her right and lodged a fresh application based on new facts
before my brother Parker AJ. The application was refused. When Parker AJ
considered the bail application he did not only confine himself to the new facts. He
also considered the evidence placed before the magistrate in order to enable him to
determine whether there were new facts or not. In this regard the learned judge
said:
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“I reiterate the finding that all the grounds which the appellant now places before this court
were placed before the learned magistrate, apart from that concerning the two month old
baby, and yet the learned magistrate refused her application for bail. The most important
factor that carried great weight in the mind of the learned magistrate is the real risk that the
applicant will interfere with State witnesses. There is nothing that the applicant placed
before this court in the present proceedings which would persuade this court that she will not
interfere with the State witnesses...”

[17] I do not understand section 60(1) to mean that in the circumstances such as
the present where the appellant lodged the above application unsuccessfully can
ignore the judgment of this court and exercise her right to bring an appeal against
the decision of the magistrate which by implication was abandoned when she lodged
an application based on new facts in this Court. Concerning the Makola matter to
which the court was referred by counsel for the appellant, the court is of the view that
that decision is not authority for the proposition that the appellant can revive an
appeal against the decision of the magistrate after the High Court had already
pronounced itself on the bail application based on new facts and the evidence
presented before the magistrate. The facts in the Makola matter are undoubtedly
distinguishable from the facts of the present case for the reasons, amongst others,
that when the Judge granted leave to appeal in that matter he was labouring under a
mistaken belief that when the appellant brought his first application, the proceedings
against him were already “pending” in the Supreme Court (as that court was then
known) within the meaning of s 60(1) of the Act. However, in the present case, the
appellant’s case is pending before this court; she correctly applied for bail in this
court on the basis of new facts of which bail was declined. It is my considered
opinion that after she failed to secure bail in this court, she could not appeal against
the decision of the magistrate given that the reasons given by the magistrate for the
refusal of bail were considered by the High Court. Therefore, she cannot have her
cake and eat it.

[18] Moreover, although counsel for the appellant is arguing that the appellant has
the right to re-enrol her appeal, in support of his argument he is attacking the
decision of this Court by Parker AJ on the basis that misdirection prevailed due to
certain evidence that was withheld and misrepresented. It would thus appear that the
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appellant seeks to pursue the appeal in disguise as if appealing the decision of the
magistrate yet her actions amount to seeking a relief in a form of review or an appeal
of the decision of this Court before the same Court that has concurrent jurisdiction.
This Court cannot entertain an appeal or review its own decision.

[19] If the appellant is aggrieved by the decision of this court, she could have
brought a bail application based on new facts, if any or she could have appealed
against the decision of this court to the Supreme Court.

[20] It was on the basis of the above reasons that this court declined to entertain
the appeal and struck the matter from the roll.

----------------------------------
N N Shivute
Judge
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APPEARANCES

STATE : Ms Nyoni
Office of the Prosecutor-General

ACCUSED: Mr Ipumbu
Instructed by Directorate of Legal Aid