SPECIAL INTEREST

CASE NO: CC 32/2001

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

CALVIN LISELI MALUMO + 116 OTHERS

CORAM: HOFF, J

Heard on: 2010.03.29

Delivered on: 2010.04.01

JUDGMENT
Application for Leave to appeal - Confessions

HOFF, J: [1] This is an application for leave to appeal against my ruling on

1 March 2010 when statements made by accused persons to magistrates were

ruled to be inadmissible evidence against the accused persons due to the fact that

the State failed to prove beyond reasonable doubt the admissibility requirements of

such admissions and or confessions.

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[2] In terms of section 316 A of the Criminal Procedure Act 51 of 1977, as

amended, the Prosecutor-General may appeal to the Supreme Court any decision

given in favour of an accused person in a criminal case in the High Court.

[3] A ruling by a Court excluding or admitting a confession or an admission is

interlocutory in nature and not appealable since such a ruling may in principle be

reviewed at the end of a trial in the light of later evidence.

(See S v Muchindu 2000 (2) SACR 313 at 316 G; S v Tjiho (1) 1990 NR 242).

[4] As a general rule interlocutory appeals are discouraged by the Courts.

(See S v Mhlungu and Others 1995 (3) SA 867 (CC) at 895, Wahlhaus and Others v

Additional Magistrate Johannesburg and Another 1959 (3) SA 113 AD at 119 D – G;

R v Musekiwa and Others 1965 (3) SA 529 SR on 530 H – 531 A; S v Ismael 1963 (1)

SA 1 AD at 5 G – 6 A).

[5] In S v Strowitzki 1994 NR 265 at 272 A – B Hannah J stated that “the

Prosecutor-General also cannot appeal until after sentence or, possibly conviction, or

acquittal and must also first obtain leave. In other words, in enacting the new

s. 316 A the intention of the Legislature was that piecemeal appeals should be

avoided whether the appeal was at the instance of the accused or the Prosecutor-

General”.

[6] Mr January who appeared on behalf of the applicant (State) submitted that

there is no “hard and fast rules” that interlocutory proceedings are never

appealable. It was further submitted that applicant has good prospects of success

on appeal and that this Court should grant applicant leave to appeal because of the

existence of exceptional circumstances.

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[7] In S v Majola 1982 (1) SA 125 (A), referred to in Strowitzki (supra), Trollip JA

considered that section 316 does not absolutely prohibit a convicted accused from

applying for leave to appeal before sentence.

[8] The accused persons before Court have not yet even been acquitted or

convicted.

[9] Mr January referred to a number of factors which in his view constitute

exceptional circumstances the basis on which this Court may exercise its discretion

in favour of the applicant namely, that the State would be seriously prejudiced if

the statements having found to be inadmissible are found to be admissible by the

Supreme Court; that many accused persons including the deponents of statements

might be discharged at the closure of the State’s case; prejudice would be suffered

by the State as well as by the accused persons if they were to wait until the end of a

trial where no one can estimate with some degree of certainty when such

eventuality may occur; that this case is unique and complex – these two factors

together with the uncertainty of the State’s case in respect of the court’s decision

constitute exceptional circumstances; and that questions of constitutional rights

considered in the trials-within-a-trial will again have to be considered by this Court

when evidence regarding pointings out will be presented by the State.

[10] The rule against interlocutory appeals, it appears to me from the authorities

is founded firstly, on the premise that an interlocutory ruling may be reviewed in

the light of later evidence and secondly, on the desirability of not interrupting or

delaying a criminal trial i.e. to reach finality as soon as circumstances may allow it.
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[11] This Court in its ruling on the inadmissibility of the disputed statements in

the trials-within-a-trial rejected some of those statements because on the testimony

of a State witness declarants had been assaulted by members of the Namibian

Security Forces prior to making statements; some disputed statements were

rejected because the magistrates who took down the statements had been informed

by the accused persons that they had been assaulted previously and the

magistrates’ subsequent failure to investigate such allegations; and in respect a

number of the statements (having regard to the seriousness of the offences charged)

the failure of magistrates to inform the accused persons of their entitlement to legal

aid thus indirectly violating their right to a fair trial.

[12] It was submitted, amongst others, that this constitutional consideration was

one of the main reasons why the statements had been rejected since it had been

considered in respect of the majority of the disputed statements. This is not quite

correct.

[13] This Court was referred to Aussenker Farms (Pty) and Another v Minister of

Mines and Energy and Another 2005 NR 21 SC where the Supreme Court

considering section 18 (1) and 18 (3) of the High Court Act 16 of 1990 and with

reference to Erasmus in his work Superior Court Practice, concluded at p. 29 B – G

that to be an appealable judgment or order it had to have three attributes one of

which is that the decision must be final in effect and not susceptible to alteration

by the Court of first instance.

[14] The ruling of this Court on 1 March 2010 was in nature interlocutory since in

theory this Court may review the ruling in the light of later evidence. In practice

however this may not be the case. If one considers the constitutional issue referred
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to (supra) namely the finding that the accused persons’ right to a fair trial had been

violated for failing to inform them of their entitlement to legal aid, the question may

be posed on what basis can it be said that later evidence may alter this position ?

The magistrates testified that they had informed the deponents of the statements of

their right to legal representation but not that they may apply for legal aid before

making the statements. I do not think that any evidence subsequently to be

presented by the State may possibility alter this situation.

The virtual non existence of this possibility has the effect that at least on this

constitutional issue the effect of my ruling is final and not susceptible to

alternation later during the course of this trial.

[15] In addition to this and because of the complexity of this case an educated

guess of when this trial would be concluded is virtually impossible. I do not

foresee, having regard to the information provided, namely that this Court would in

future be required to rule on a number of pointings out, that the State’s case would

be concluded during the course of this year. The majority of the accused persons

have now been in detention for the past ten years.

If for the sake of argument this case is finalised within the next three years allowing

the State at that stage to appeal against my ruling of 1 March 2010, and the State

is successful, would mean in practice (assuming some accused persons had been

discharged at the end of the State’s case because of the fact that their statements

had been ruled inadmissible), that those accused persons will have to be returned

to this Court and will have to be put on their defence and will have to answer to the

incriminating statements made in their confessions or admissions.

This in turn would further delay the finalisation of this trial.

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[16] Mr January with reference to Kanesa v Minsiter of Home Affairs and Others

1995 NR 175 (SC) submitted that this Court erred in relying on a matter (legal aid)

not put before this Court by the litigants either in evidence or in oral or written

submissions.

I have touched upon this issue in my ruling on 1 March 2010 and need not repeat

it.

[17] In S v Nowaseb 2007 (2) NR 640 this Court referred with approval to S v

Sikosana 1980 (4) SA 559 AD at 562 D- E where the following was said in respect of

applications for leave to appeal:

“A new Criminal Procedure Act is now applicable (s. 316 (1) of Act 51 of 1977)
but the test remains unchanged, and it must be said once more that the
application should not be granted if it appears to the learned Judge that
there is no reasonable prospect of success.
The trial Judge is faced with no easy task; he must exercise his power
judicially.
“The mere possibility that another Court might come to a different conclusion is
not sufficient to justify the grant of leave to appeal.”
(per MILLER JA in S v Ceaser 1977 (2) SA 348 (A) at 350). Nor, as it was
pointed out by CENTLIVRES J in Baloi’s case supra, is it enough that the case
is “fairly arguable”. Nor is it enough that it will offer solace (“troos”) to the
applicant to know that the final decision in a serious case will be given by the
Appeal Court (S v Swanepoel 1978 (2) SA 410 (A).

and the court continued at 562 H:

“Once the trial Judge has firmly come to the conclusion that the State has
proved the guilt of the accused beyond all reasonable doubt he must proceed
to reconsider the case from an objective standpoint and ask himself whether
there is not a reasonable prospect that another Court might come to a
different conclusion.”
(Emphasis provided).
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[18] This Court in its ruling dealt with the issue of credibility and why this Court

did not deem it necessary to consider the versions of the accused persons. In this

regard my view remains unchanged. The same is true in respect of my finding that

magistrates once alerted to the fact of assaults on accused persons or other undue

influence should have questioned those accused persons in order to ascertain why

they wished to repeat previous statements. Their failure to do so resulted in this

Court’s finding that the State failed to prove the voluntariness of those statements.

In respect of these two issues (i.e. this Courts’ lack of a credibility finding and the

magistrates’ failure to further question accused persons) I am of the view that the

applicant, has for reasons apparent from my 1 March 2010 ruling, no reasonable

prospects of success on appeal if leave were granted.

I have further indicated in my ruling of 1 March 2010 that in respect of the accused

persons, Calvin Liseli Malumo, Rodwell Mwananbwe Sihela and Chika Adour

Mutalife that their claims of assault by members of the police force prior to making

warning statements and statements to magistrates had corroborated by two State

witnesses and that the State failed to prove the voluntariness of their respective

statements to the magistrates. In respect of these accused persons this Court came

to its finding without considering the constitutional issue referred to (supra).

A number of statements declared inadmissible were on the basis that the

entitlement to legal aid had not been explained in addition to the fact that

deponents had claimed that they had been assaulted and the magistrates’ failure to

investigate those allegations.

A number of statements had been excluded solely on the fact that the accused

persons had not been informed of their entitlement to legal aid. The statement of

Richwell Makungu Matengu had been excluded because it was neither a confession

nor an admission but a total denial of the commission of any offence.

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In respect of Ziezo Austin Lemuha the statement was excluded on the

interpretation of an answer to a question that he did not wish to repeat the

statement given to the investigating officer.

[19] I have indicated (supra) that exceptional circumstances would justify a

departure from the general rule against interlocutory appeals. However once a

finding of exceptional circumstances was made (which I now make) this Court still

needs to assess whether on the grounds of appeal set out by the applicant there are

reasonable grounds for success on appeal.

I am of the view that only in respect of those statements excluded exclusively on the

constitutional issue (i.e. failure to inform accused persons of their entitlement to

legal aid) is there a reasonable prospect that another Court may come to a different

conclusion. It appears from the record of my 1 March 2010 ruling that the

following statements were excluded solely on the basis of the constitutional issue:

O’Brien Sinkolela Mwananyambe, Albert Sekeni Mangilasi, Tobias Mushwabe

Kananga, John Tibiso Masake, Charles Mukena Samboma, George Masialeti

Liseho, Davis Chioma Maziu, Francis Buitiko Pangalo, Roster Mushe Lukato, Kisco

Twaimango Sakusheka, Frederick Kabodontwa Luthehezi and Andreas Puo

Mulupu.

[20] In respect of the statements of those accused persons leave to appeal is

granted, and granted only in respect of the constitutional issue referred to (supra).

In respect of the statements of all the other accused persons leave to appeal is

refused.

_________
HOFF, J
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ON BEHALF OF THE STATE: ADV. JANUARY

(Application for Leave to appeal – Confessions)

Instructed by: OFFICE OF THE PROSECUTOR-GENERAL

ON BEHALF OF THE DEFENCE: MR KRUGER

MR NEVES

MR McNALLY

Instructed by: DIRECTORATE OF LEGAL AID