Amushelelo v S(HC-MD-CRI-APP-CAL-2022-00054) [2022] NAHCMD 425 (22 August 2022) – appeal against refusal by the magistrate to grant bail. In upholding the appeal, the High court stated the following:

The release of the other six co-accused facing the same charges as the appellants on warning was a material factor that required further scrutiny and the accused persons ought to have been treated the same, except where compelling circumstances require a different approach.

There was no evidence that remotely explained the differentiation made by the police between the appellants and their co-accused when releasing the latter on warning, and there was nothing in the record that remotely explained or justified the inconsistent handling by the police of the appellants’ case opposed to that of their co-accused. 

Not every misdirection committed by a magistrate leads to the entire proceedings being vitiated, as the effect thereof must be decided against the evidence as a whole.

Bail may be refused if there is a real likelihood that the appellants will commit further offences while out on bail, and there must be evidence showing that, objectively viewed, there is a real likelihood of it happening. The High court was satisfied that the evidence did not establish that a real likelihood existed that the appellants would re-offend when out on bail. 

In deciding whether their release would be prejudicial to the maintenance of law and order, and in particular towards certain members of society, the High court was convinced that any such future conduct could be countered by appropriate bail conditions. 

The interest of the administration of justice does not require the continued detention of the appellants, pending the finalisation of their case.

S v I (HC-NLD-CIV-APP-AMC-2020-00002) [2022] NAHCNLD 77 (15 August 2022) – matters involving minor children should be resolved on merits and not technicalities

This matter emanated from an application for guardianship by the maternal grandmother of minor children, which was opposed by their biological father. The Children’s Court granted the application without hearing the entire merits of the matter, the evidence of witnesses or the parties and in the absence of the appellant. Dissatisfied with the outcome, the appellant lodged an appeal against the decision of the Children’s Court. The court considered the provisions of the Child Care Protection Act, 2015 (Act No. 3 of 2015) and the grounds of appeal and the arguments for and against the appeal, and held that:

The proceedings in the court a quo did not warrant the drastic step resorted to by the court – that is to grant the application without hearing evidence and in the absence of the appellant, who through her legal representative explained her unavailability. 

The court a quo should have shown some degree of patience if it were to give substance to the fundamental principle of natural justice, which mandates that a person be heard before a decision is made that would negatively affect them.

Children are among the most vulnerable members of society who depend on others for protection and care.

As the upper guardian of all minors, the court cannot over-emphasise the importance of resolving issues involving children on the merits and not on technicalities. It is through this that the overriding objective, which is the best interests of the child, can be better preserved.

In the result, the court order of the Children’s court was set aside and the matter was remitted back to that court for a proper hearing. 

Thambapilai v S (CC 36-2008) [2022] NAHCMD 388 (4 August 2022) – the  test in an application for leave to appeal 

Following their sentence to prison after being convicted on various counts, three applicants in this matter lodged an application for leave to appeal against sentence. The state opposed the application by referring to the test to be applied when considering an application for leave to appeal. 

The High court considered the matter and stated that leave to appeal will be granted if the applicant satisfies the court that there are reasonable prospects of success on appeal. The mere possibility that another Court might come to a different conclusion is not sufficient to justify the grant of leave to appeal. The powers of a court of appeal to interfere with the discretion of the sentencing court are limited – as such, interference is only permissible where the trial court has not exercised its discretion judicially or properly, i.e., when it has misdirected itself on facts material to sentencing or on legal principles relevant to sentencing. 

Further that the trial court balanced the circumstances to each of the applicants, the crimes committed and the expectations of society, coupled with a blend of mercy, and indeed took into consideration the personal circumstances of the applicants.  In the result, the court was not satisfied that there were prospects of success and dismissed the application for leave to appeal. 

S v  Esau (CR 70-2022) [2022] NAHCMD 386 (02 August 2022) – unauthorised stopping of prosecution

In this matter, the accused person was charged with the offence of robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 51 of 1977, as amended (the CPA). The accused pleaded not guilty on the charge and gave a plea explanation in terms of section 115 of the CPA. The matter was then postponed for trial. Thereafter, it was postponed for various reasons. On 10 January 2022, the public prosecutor informed the court that the complainant filed a withdrawal statement and refused to come to court. The prosecutor requested the court to deem the State’s case to be closed and to discharge the accused in terms of section 174 of the CPA. The magistrate agreed, and acquitted and discharged the accused.

The matter was sent for special review by the Divisional Magistrate in terms of section 304(4) of the CPA and requested the High Court to set aside the section 174 discharge due to an irregularity described as a stopping of prosecution, as there was no authorisation by the Prosecutor General (PG). The court considered the matter and stated it was evident from the record of proceedings that the prosecutor did not inform the magistrate whether there was a required authorisation from the PG to stop the prosecution. Neither did the magistrate enquire whether the prosecutor has obtained such approval. As per The State v Samuel Ekandjo CR 04/2010 (23.04.2010), unauthorised stopping of prosecution amounts to a nullity. The prosecutor has to either obtain the consent of the PG to stop the prosecution or proceed to lead evidence on the charge which was put to the accused. In the result, the closing of the State’s case and the accused’s subsequent acquittal in terms of section 174 were set aside, and the matter was referred back to the trial court with directions to proceed to trial if the prosecutor is unable to obtain the PG’s consent.

Angula v Tjaronda (HC-MD-CIV-ACT-DEL-2019-05338) [2022] NAHCMD  364  (25 July 2022) – defamation claim arising from ‘tweets’ or ‘posts’ on social media 

In this matter, the plaintiff instituted action against the defendant claiming damages arising from alleged defamatory ‘tweets’. The defendant argued that the statements he made on social media were true and published in public interest. The court had to determine whether the statements were defamatory – and in doing so – held that:

In order to determine whether the statements were defamatory to the plaintiff, the court must first examine the ordinary meaning of the statements published by the defendant – and secondly, establish whether that meaning is defamatory. To do that, one would have to ask how the statements would be understood in their context by an ordinary reader.

The ‘tweets’ that the defendant made about the plaintiff would be understood by a reasonable person of ordinary intelligence to mean that the plaintiff told lies in her personal and professional capacity; that the plaintiff was dishonest and lacked integrity; that the plaintiff had willfully told an untruth under oath and therefore committed an offence, and that the plaintiff had conducted herself unethically and without integrity. These statements were, therefore, defamatory to the plaintiff and the meaning conveyed tarnished the plaintiff’s reputation and dignity, thereby lowering her reputation in the estimation of right-thinking members of the society.

Once the publication of a defamatory statement is proved, it is presumed that the publication was wrongful and made with the intention to injure/defame (animo injuriandi).

To escape liability, the defendant can raise and provide evidence of a defence that excludes either wrongfulness or intention, which the defendant failed to do.

In the result, the statements made by the defendant were declared false and defamatory, and the defendant was ordered to pay an amount in damages and to publish an apology on his social media platforms within 10 days. 

CBI Exchange Namibia (Proprietary) Limited v Bank of Namibia (HC-MD-CIV-MOT-GEN-2022-00239) [2022] NAHCMD 339 (7 July 2022) – court orders are not mere suggestions or pleas 

Whereas an order was made on 18 March 2022 for the first respondent to do certain things but failed to do so, the applicant launched an urgent application. The High court stated that when courts issue orders, they do so not as suggestions or pleas to the persons to whom they are directed. Court orders issued ex cathrada, are compulsive, peremptory and expressly binding. It is not for any party – be he high or low, weak or mighty and quite regardless of his status or standing in society – to decide whether or not to obey; to choose which to obey and which to ignore or negotiate the manner of his compliance.

Telecom Namibia Limited v Namibia Public Workers Union and Others (HC-MD-LAB-MOT-REV 150 of 2021) [2022] NALCMD 13 (16 March 2022) – where preliminary points are raised, the arbitrator should conduct a preliminary issue hearing

In this labour matter, the parties were locked in a dispute at the office of the Labour Commissioner for alleged unilateral change in terms and conditions of employment. Telecom raised preliminary issues (points in limine). The arbitrator directed the parties to file written heads of argument, and after considering both arguments, dismissed Telecom’s preliminary issues and set the matter down for an arbitration hearing. Aggrieved by this, Telecom filed a notice of review in terms of section 89 (4) read with section 89 (5) (a) (ii) of the Labour Act, 11 of 2007, for the review, correction and setting aside of that ruling.

On review, the Labour court had to determine whether the arbitrator committed a gross irregularity when he directed the parties to file written submissions on the points of limine without conducting a preliminary hearing first, and stated that:

When it comes to preliminary issues, the procedure that is followed regularly by the courts is that a preliminary issue hearing is held first and evidence is led where applicable, especially in circumstances where the preliminary issues raised can dispose of the matter.

The arbitrator acknowledged that the preliminary issues had to be determined through a hearing where both parties led evidence, but proceeded to dismiss the points raised on the papers alone. 

The arbitrators’ discretion in terms of section 86 (7) does not justify him/her to completely disregard the legitimate expectation of parties to be allowed procedural rights that are commonly associated with a hearing before a ‘tribunal’ as envisaged in Article 12 of the Constitution.

The applicant was prejudiced by not having a fair hearing regarding the preliminary issues raised.

The manner in which the arbitrator decided to deal with the preliminary issue was a gross irregularity. 

In the result, an arbitration award was set aside. 

Fedden Mainga Mukwata writes in his capacity as an admitted Legal Practitioner and founder of FASZ Legal Consultancy CC. This is part of his effort to promote access to law and justice; he may be reached at consultfasz@gmail.com.