The court determined whether the magistrate in the court a quo made the correct decision regarding the appellant's bail application based on new facts. The appellant presented five new facts, including eight years in custody, non-implication by the complainant, co-accused granted bail, parental obligations, and a medical condition. The court found only the duration of custody as a valid new fact. It rejected the notion of non-implication, clarified that co-accused bail doesn't extend to all, deemed parental obligations not new, and dismissed the medical condition as likely constipation. Despite concern about the lengthy custody, the court remained unconvinced that the appellant wouldn't abscond upon release.
refugee, bail application, appeal, standard of appeal
The appellant, a foreign national without fixed assets in Namibia, appealed against the Magistrate Court's refusal to grant him bail. Although not directly addressing refugee issues, the case involved a foreign national living in a refugee camp and emphasized challenges faced by such individuals in obtaining bail and the importance of protecting their rights. The appellant, arrested for robbery in May 2008, made a second bail application on December 5, 2016, citing new facts. Despite factors like time spent in custody, non-implication at trial, co-accused being granted bail, duty of care to his child, and medical needs, the court a quo found only one assertion as a new fact. Due to the high risk of the appellant absconding, the application was primarily dismissed, leading to the current appeal.
The appeal was dismissed.
The court held that the purpose of refusing bail to accused parties was not meant to be punitive, but rather to secure the attendance of the accused at trial. Because the appellant had not proven that he would not abscond, and because the court could not ensure that police officers could find him if he did abscond, it held that granting bail would not have served the interests of justice.