REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

BAIL APPEAL JUDGMENT

CASE NO: HC-MD-CRI-APP-CAL-2021/00077

In the matter between:

VICTORINUS TJOMBE APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Tjombe v The State (HC-MD-CRI-APP-CAL-2021/00077) NAHCMD

539 (19 November 2021)

Coram: JANUARY J
Heard: 15 November 2021
Delivered: 19 November 2021

Flynote: Criminal procedure — Bail Appeal – Appellant unrepresented – First bail

application – Refused – Second bail application on purported new facts – Period in
custody and an offer to return to employment submitted as new facts – Not found to be
new facts – Natural consequence of having been denied bail - No misdirection’s by
magistrate – Appeal dismissed.
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Summary: The appellant was arrested on 02 August 2019 on a charge of assault with
intent to do grievous bodily harm read with the provisions of the Combating of Domestic
Violence Act 4 of 2003. He applied for bail and testified about his personal
circumstances. Amongst others, he was employed and earned a salary and conducted
an own business. He was responsible to financially care for his family. He has a
previous conviction of attempted murder also in a domestic setting. At his arrest he
attempted to commit suicide. The granting of bail was denied because in the
circumstances it was not in the interest of justice to release him on bail.

He brought a second bail application on purported new facts i.e. that he was
incarcerated for 1 year and 8 months; that he was informed that his employment was
still open and that he could return to work if granted bail. It was found that these facts do
not constitute new facts upon which bail could be reconsidered. The appeal is
dismissed.

ORDER

The appeal is dismissed.

BAIL APPEAL JUDGMENT

JANUARY J

Introduction

[1] The appellant was arrested on 02 August 2019 on a charge of assault with intent
to do grievous bodily harm read with the provisions of the Combating of Domestic
Violence Act 4 of 2003. He formally applied for bail on 11 October 2019 (the first bail
application) in the Swakopmund magistrate’s court. The granting of bail was opposed
and eventually refused.
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[2] A second bail application was brought on 30 March 2021 on purported new facts.
This application was also refused on 22 April 2021. This appeal lies against the refusal
of bail in the second bail application.

[3] The appellant was unrepresented in both bail applications in the lower court and
is unrepresented in this court. Mr Lilungwe is representing the respondent in this court.

The grounds of appeal and submissions by appellant

[4] The grounds of appeal are drafted in layman’s language. The following is evident
from the purported grounds of appeal in the notice of appeal:
1. The magistrate erred in not granting bail regardless of the fact that the appellant
was unrepresented.
2. Despite submitting authority (precedent), supporting the granting of bail to the
appellant, the magistrate erred by not considering those cases. In particular the
magistrate did not consider as a new fact that the appellant was at the time 1
year and 8 months incarcerated trial awaiting.
3. The magistrate erred in not finding that it was in the interest of justice to grant
bail to the appellant.
4. The learned magistrate erred in not properly and objectively considering or
analyzing the evidence placed before her.
5. The magistrate attached undue weight to the arguments by the State and
disregarded material evidence that the appellant placed before court.
6. The appellant submitted that this court should grant him bail in the amount of
N$5000 with stringent bail conditions attached.

[5] The appellant made oral submissions and in addition submitted written heads of
argument. He reiterated that the magistrate erred in rejecting his period of pre-trial
incarceration as a new fact. He further submitted that the court erred by not allowing
him to call witnesses in support of the second bail application on new facts. The
appellant contended that he informed the court a quo as a new fact that his employer
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was willing to re-employ him if bail is granted. His position as employee with his former
employer was still open. He submitted that in this regard the court committed
misdirection’s. In conclusion, he submitted that he is now in custody for 2 years and 3
months and the commencement of the trial is not yet in sight.

Respondent’s submissions

[6] Mr. Lilungwe submitted that the contention of the magistrate not having properly,
objectively and fairly analyzing the evidence is without merit. He submitted that the
magistrate in a well-reasoned judgment carefully considered the evidence and
meritoriously refused the granting of bail. It was contended that the magistrate was
correct in finding that the purported new facts were already raised and considered in the
first bail application.

[7] On the contention that the magistrate attached undue weight to the arguments of
the State and disregarded material evidence, it was submitted that no particulars on
these allegations were provided. Further, that these submissions are mere conclusions
by the appellant and fail to enthuse clarity and specificity.

[8] Mr. Lilungwe submitted that the appellant’s contention of having been refused to
call a witness or witnesses during the second bail application is not correct. The record
reflects that the court did give him the opportunity by postponing the proceedings for 2
weeks. Appellant could then not secure the presence of the witness. It was submitted
that the cases referred to by the appellant in support of his appeal, are distinguishable.
Further, that the appellant with his second bail application merely wanted to have a
second bite at the cherry to secure the granting of bail.

The bail appeal

[9] Section 65(4) of the Criminal Procedure Act 51 of 1977 provides in relation to bail
appeals against the refusal of bail by lower courts that:
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‘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 opinion the lower court should have
given.’

[10] This Court thus, needs to be persuaded that the magistrate exercised the
discretion which he/she has wrongly. Consequently, the court cannot unfairly interfere
with the magistrate’s exercise of discretion because the court has a different view on the
issue of bail. No matter what this Court's own views are, the real question is whether it
can be said that the magistrate who had the discretion to grant bail exercised that
discretion wrongly.’1

The first bail application

[11] The proceedings of the first bail application are incomplete before this court. It is
only a small concluding portion of cross-examination of the appellant that are reflected
in the record of proceedings. However, on perusal of the magistrate’s judgment, it
reflects what the testimony of the appellant was.

[12] His personal circumstances are that he is 43 years old. He testified that he is a
law abiding Namibian citizen. He was employed as a boilermaker before his arrest
earning a salary of N$7000. His salary was frozen after his arrest. He has an own
business in welding that he was running making trailers. He earned an additional
income from it. He consumed acid, a concoction of cleaning fluid/material that he used
as a boilermaker at the time of his arrest. He pays for his own medical expenses for
treatment he receives after the drinking of the acid. He handed to court in corroboration
to his medical condition, his hospital passport indicating that a G-scope needed to be
done urgently. In addition, he handed copies of medical photos allegedly depicting the
atrium of his stomach. At the time of the first application he was in custody for 2 months.

[13] The appellant during his cross-examination stated that he made a terrible
mistake in assaulting the complainant. He intended to apologize to the complainant. He

1
See: S v Timotheus 1995 NR 109 (HC) at 113 A-B. Also: S v Miguel & others 2016 (3) NR 732 (HC).
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conceded that he was afforded the opportunity to consult with doctors after his arrest,
He however, contented that the police holding cell environment is not conducive for the
treatment that he needed as a result of drinking the acid. He testified that he can easily
become septic. In addition he did not receive the necessary food that he needed.

[14] He admitted a previous conviction of attempted murder on a different victim but

also in a domestic setting. He ascribed that crime due to the fact that he was
depressed.

[15] The investigating officer testified that the complainant reported this case at the
police station. She effected the arrest of the appellant. On her approach to arrest him,
the appellant removed something and drank it where after he collapsed. He was taken
to hospital for treatment.

[16] It is evident from the judgment that the J88, the medico-legal examination report
of the complainant was handed up as an exhibit. The complainant sustained superficial
stab wounds on the legs, thighs, buttocks and a 3 cm laceration on the upper lip with a
tooth chipped. The investigating officer observed the injuries.

[17] The investigating officer discovered during the investigation, that there was a
formal written warning issued prior to the incident from the Mondesa police station to the
effect that the appellant was warned in terms of section 2 of the Combating of Domestic
Violence Act 4 of 2003 not to commit domestic violence on the complainant i.e. physical
abuse or intimidation, not to go to the complainant’s house and not to contact her.

[18] The grounds of objection against the granting of bail were:

1. The appellant was a repeat offender and has the propensity to commit similar
offences.
2. The offence is serious,
3. The State has a strong case against the accused.
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4. It is not in the interest of the public or interest of the administration of justice that
the accused be released on bail.

[19] The magistrate found the charge to be serious; considered that there was a
strong prima facie case; that the onus was on the appellant to show that he is a
candidate for bail; if it was in the interest of justice to grant bail; the likelihood of the
appellant to stand his trial; the likelihood of tampering with State witnesses. Eventually
bail was refused.

The second bail application

[20] This application for bail was based on purported new facts. The appellant
testified and stated that the previous bail application was refused because the
magistrate found that there was a strong case; that there is a likelihood that the
appellant might re-offend if bail is granted; that the complainant filed a bail statement
opposing the granting of bail; that it was not in the interest of justice to grant him bail;
He testified that he was 1 year and 8 months in custody at the time of the second bail
application. He was informed that he could go back to his former employment if granted
bail. He submitted case authority supporting his application for bail on new facts. In
addition, he submitted an affidavit by a community relations officer at Arandis police
station, stating that the appellant manned the kitchen at the police station, preparing
food, cleaning the yard etc. and that the appellant was a good candidate for bail.

[21] The appellant dwelled and revisited the first bail application testifying that the
magistrate in that application was wrong to attach too much weight to the hearsay
evidence of the investigating officer. He submitted that bail should be granted with
stringent bail conditions attached to it. He testified about his 3 minor children. That he is
the sole breadwinner. He wanted bail to, amongst others, financially support his
children. He stated that he has parted ways with the complainant and undertook to keep
it that way. He stated that he wanted to commit suicide as a result of psychological
trauma but is now past that stage and rehabilitated himself. He wanted to get back to
his employment.
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[22] In cross-examination, the appellant confirmed that one of the new facts he was
relying on is that he could return to his former employment if bail is granted. He further
confirmed that the issue of his employment was raised in the first bail application. He
confirmed that the primary reasons why bail was refused was because he was a second
offender and the fear that he could re-offend.

[23] The magistrate enquired from the appellant if he want to call witnesses in support
of his second bail application. He wanted to call a witness to shed light on the
testimony of the investigating officer in the first bail application. The prosecutor objected
on the basis that the appellant could not revisit the first bail application. The magistrate
explained that to the appellant. He understood and indicated that he wanted to call his
cousin. The magistrate granted the appellant 2 weeks to secure the presence of the
witness. The witness was absence. The appellant informed the court to proceed without
the witness and closed his case.

[24] The magistrate considered the evidence and concluded that there are no new
facts on which the court was convinced to grant bail. The issue of employment was
raised in the first bail application. The magistrate considered the so-called new facts in
conjunction with what transpired in the previous bail application. She concluded that the
time of 1 year and 8 months in custody trial awaiting cannot be considered as a new
fact because it is a natural consequence of bail being denied in the first bail application.
Further, the personal circumstances of the appellant having minor children that he has
to care for, that he wishes to financially assist his family and was employed, were also
considered in that application. The issue as to whether or not there is a strong prima
facie case was likewise considered. The magistrate concluded that the appellant
wanted to amplify his previous bail application with a new application disguised to be
brought on new facts. She dismissed the application.

[25] I agree with the magistrate that the points raised, do not constitute new facts.
The period of incarceration is a natural consequence of bail being denied. It also
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naturally followed that the appellant could not return to his previous employment and
thus, could not earn a salary or income. In the circumstances, the fact that he was
informed that he may return to his employment is not relevant to the grounds on which
bail was denied. The appellant raised a point in this court that he is currently
incarcerated for 2 years and 3 months and that the end is not yet in sight. I am not
informed what the stance of the matter currently is but the record of proceedings at
conclusion of the second bail hearing reflects that the matter was trial ready. The
appellant’s further incarceration again is and will be a natural consequence of bail being
denied.

Conclusion
[25] After perusal of the proceedings against which this appeal lies, the partly
proceedings of the first bail application and judgments of both magistrates a quo, I do
not find any misdirection or indication of an error justifying this court to find that the
magistrate was wrong. Consequently the appeal must fail.

[26] In the result:

The appeal is dismissed.

_____________________
H C JANUARY
JUDGE
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APPEARANCES

APPELLANT: In Person

RESPONDENT: Mr. Lilungwe

Office of the Prosecutor-General