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S v Fransley (CR 83/2013) [2013] NAHCMD 364 (29 November 2013)

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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case no: CC 32/2001


DATE: 17/09/2013



In the matter between:


THE STATE


And


CALVIN LISELI MALUMO & OTHERS



IN RE: IN THE APPLICATION BETWEEN


THADDEUS SIYOKA NDALA (Accused No. 70)

AND 14 OTHERS.................................................................................................APPLICANTS


And


THE STATE, represented by

THE PROSECUTOR-GENERAL AND 54 OTHERS...............................RESPONDENTS



Neutral citation:


Ndala v The State (CC 32/2001) [2013] NAHCMD 374 (17 September 2013)


Coram: HOFF J


Heard: 16 September 2013


Delivered: 17 September 2013


Judg. made available: 09 December 2013



ORDER


Application is struck from the roll.



JUDGMENT



HOFF J:


[1] This is an application served on the respondents yesterday morning with the request that the hearing of the merits of these Applications should stand down until tomorrow Wednesday the 18th of September 2013 in order to hear the application in respect of the merits thereof.


[2] The applicants in the founding affidavits deposed to by Mr Thaddeus Siyoka Ndala (Accused no. 17) sought the following relief:


1. declaring that the High Court of Namibia has no jurisdiction in respect of the territory known and described as the Eastern Caprivi Zipfel.


2. declaring the High Court Act, Act 16 of 1990 has no application in the territory known and described as the Eastern Caprivi Zipfel.


3. declaring that the High of Namibia has no jurisdiction over the 15 applicants and or to adjudicate any of the offences contained in the indictments preferred against the applicants allegedly having been committed in the territory known and described as the Eastern Caprivi Zipfel.


4. declaring that the Arms and Ammunition Act, Act 7 of 1999, the Defence Act, Act 1 of 2002, the Police Act, Act 19 of 1990, the Union Regulation Amendment Act, Act 34 of 1995 as amended by section 2 of the departure from Namibia Regulation Act, Act 4 of 1993 are not applicable in the territory known and described as the Eastern Caprivi Zipfel.


5. declaring that the applicants have not properly and lawfully been arrested in terms of the Defence Act, Act 44 of 1957 as amended by section 29 of the Defence Amended Act, Act 20 of 1990 as amended by Act 1 of 2002 and the Police Act, Act 19 of 1990.


6. declaring that the applicants have not properly and lawfully been arraigned before the High Court of Namibia for a lack of jurisdiction of trying then on the indictments preferred against the applicants.


7. declaring the proceedings a nullity.


8. declaring that the applicants are entitled to be discharged, alternatively be released from further prosecution as is provided for in Article 12 of the Namibian Constitution.


9. granting the applicants such further and or alternative relief as this Honourable Court should deem meet.


[3] Now this application is opposed by the State as well as counsel appearing on behalf of the other accused persons.


[4] In the founding affidavits the applicants referred to an application brought at the inception of this trial in Grootfontein where this Court was also approached on notice of motion supported founding affidavits in which the following relief was sought at that stage and I quote:


1. Directly and holding that the applicants are not amenable to the criminal jurisdiction of the Court in respect of the indictments.


2. Declaring that the applicants’ apprehension and abduction from Zambia and Botswana respectively and their transport to Namibia and purported arrest and detention pursuant thereto is in breach of international law and wrongful and unlawful.

3. Declaring the applicants have not properly and lawfully being arrested and properly and lawful been arraigned before a court of competent jurisdiction for the purposes of trying them on the indictments preferred by the prosecution against the applicants.


4. Declaring if the applicants are entitled to be discharged from the imprisonment and detention at present pending their trial on the said indictments.

5. Granting the applicants further and or alternative relief.’


[5] Now this Court delivered a Judgment on the 23rd day of February 2004 and had the following to say at page 3 of that judgment in respect of the application brought by way of notice of motion and I quote:


The State opposed the application. I subsequently ruled that the proceedings before me are criminal proceedings and that viva voce evidence is as a rule presented in criminal proceedings and ruled that the notice of motion supported by the founding affidavits would be regarded as pleas in terms of section 101, 106 (1)(f) of the Criminal Procedure Act 51 of 1977 namely pleas that this Court has no jurisdiction to try the offences preferred against the 13 accused persons/applicants. (See Induli and another v Ministry of Justice and Others 1978(1) SA893 Appellate Division).’


[6] This Court subsequently upheld the plea that it has no jurisdiction and ordered the release of the 13 accused from custody. The State appealed against this ruling and in a subsequent decision, the Supreme Court by majority judgment the decision of this Court was overturned. The Supreme Court held that this Court had jurisdiction to hear the matter. This Court was bound by this judgment and subsequently continued with the trial.


[7] On the 8th of March 2007 after having heard more than 90 State witnesses’ testimony this Court gave another judgment subsequent to an application brought by Mr Aggrey Kayaba Makendano accused no. 11 in relation to the issue of this Court’s territorial jurisdiction.


[8] In this application it was submitted by Mr Makendano that the Caprivi Region does not form part of the national territory of the Republic of Namibia as identified in Article 1(4) of the Namibian Constitution.


[9] In this Judgment I referred to the different stages of a criminal trial and that a plea explanation serves to inform the State what is in dispute and that it is thus necessary, for this reason, to tender a plea including one that the court lacks jurisdiction at the inception of the trial.


[10] In this judgment I referred and stated that one of the reasons that a plea which disputes the jurisdiction of a court must be pleaded with the reference of the case of S v Piliso 1991 (2) SACR 354 TK, is that the object of section 106(1) (f) was to avoid the courts wasting time in trials on which they have no jurisdiction, hence the indirect injunction to an accused to raise any plea to the court’s jurisdiction at the commencement of the trial or not at all.


[11] I must at this stage pause and state that Mr Makendano who had been represented at the stage when he pleaded on the 15th of March 2004, pleaded not guilty and stated that he did not wish to reveal the basis of his defence and reserved all his rights of plea explanation. His rights would include his right to challenge the jurisdiction of this Court.


[12] How this Court responded to a plea formulated in this fashion, appears on pages 9 and 11 of the judgment where the following appears at paragraphs 18, 19 and 25 which I will now quote:


[18] Where an accused person reserves his or her right to challenge the jurisdiction of any court such a reservation hamschackles one of the very aims of a plea that is, the determination of the ambit of the dispute.


[19] I will add to the passage supra that it would be a waste of cost to allow an accused person to dispute the jurisdiction of a court at the time the accused finds it convenient to do so, especially in a complex and protracted trial as the one we are presently engaged in. If an accused were to be allowed to keep a plea that the court has no jurisdiction in abeyance it would result in the court, the prosecutor, co-accused persons and defence counsel being kept in suspense for an indeterminate period of time, such the situation would simply be untenable.


[25] Mr Samukange a member of the defence team explained to this Court the reason why it was considered appropriate to draft pleas of accused persons in the format in which the plea of Mr Makendano had been drafted. I can understand it was expedient to do so at that stage. However, in my view it remains an alien procedure which is disapproved of by this Court and should not be allowed in future.


[26] It is not necessary for me in the light of the reasons mentioned supra to consider and to give a ruling on the submission by Mr January that this “Jurisdiction Application” should be viewed as a defence which could be raised by the accused during the course of the proceedings. The accused himself in any event does not regard this application as a substantive defence.’


[13] That application brought on notice of motion was dismissed. The present application also brought on notice of motion inter alia also challenges the jurisdiction of this court in respect of the persons of the applicants/accused and the lack of jurisdiction in respect of the territory of Caprivi Region presently known as Zambezi Region. In my view, in essence this application is a plea and this Court lacks jurisdiction disguised as an application brought on notice of motion.


[14] In this regard what was stated by this Court in its judgment of 8 March 2007 regarding the plea in terms of Section 106(1)(f) of the Criminal Procedure Act disputing the territorial jurisdiction of this Court finds direct application. The ‘Application’ is being brought more than nine years out of time if one has regard to the fact that the accused persons already pleaded on the 15th of March 2004.


[15] It is not the time and place to consider the merits of this application but since this Court has so often heard the submission that it is not unlawful to endeavour to secede the region by constitutional means and assuming the validity of the submissions made in the founding affidavits of the applicants that this maybe an example, albeit with the wisdom of hindsight, of an avenue which could have been pursued in the appropriate forum and at appropriate time in respect of the lawful and peaceful secession of the region.


[16] The issue of lack of jurisdiction of this Court to adjudicate upon the charges preferred against all the accused persons as well as the lack of territorial jurisdiction had been dealt with exhaustively.


[17] Despite two judgments of this Court and one judgment in the Supreme Court, there is this persistence to revive the issue of jurisdiction. There is merit in my view in submissions made by counsel appearing on behalf of the other accused persons as well as counsel appearing on behalf of the State that this application is ill-conceived and this Court is the wrong forum to bring this application, that this Court is functus officio in respect of the jurisdiction issue.


[18] It was stated in the State vs Absalom 1989 (3) SA 154 AD at page 164(b) to (c), that it is settled view that a court’s jurisdiction in criminal matters is determined by statute. That is the Criminal Procedure Act and such other relevant statutory provisions as there may be. (See also the case of Safadza and others v Attorney General Transvaal and Another 1989(1) SA 281 Appellate Division).


[19] The applicants do not state in their founding affidavit in terms of which provision this Court is required to adjudicate upon an application brought on notice of motion.


[20] In my view that time has come at least in respect of proceedings before this criminal trial to finally lay the issue of jurisdiction to rest after having heard evidence on the merits of the charges for a period of more than nine years. Figuratively speaking, the door must now be closed which I now do.


[21] In the result the application is struck from the roll.



E P B HOFF


Judge



APPEARANCES


APPLICANTS: I Agenbach


Directorate of Legal Aid, Windhoek



FOR THE STATE: H January


of Office of the Prosecutor-General, Windhoek



FOR THE REMAINDER OF P Kaut, P McNally, J Neves, V Kachaka,


ACCUSED PERSONS: G Nyoni, C Kavendjii & P Muluti


Instructed by Directorate of Legal Aid, Windhoek