S v Acheson is an important case in Namibian and South African law, especially in the area of criminal procedure. It was heard in the Namibia High Court from 18 to 20 April 1990, by Mahomed AJ, who handed down judgment on 23 April 1990. T. Grobbelaar SC (with him GH Oosthuizen) appeared for the accused, and H. Heyman for the State.
Adjournments
Section 168 of the Criminal Procedure Act, in terms of which a court may adjourn proceedings "if [... it] deems it necessary or expedient," bestows upon the court seized with the matter a judicial discretion as to whether to grant an adjournment or not. The word "necessary" in the section means "reasonably necessary" in the particular circumstances of the case, and "expedient," in the context, refers to what is advantageous or judicious or proper or suitable to the case.
When an adjournment is sought in order to call witnesses who are not available in court, the court would, ordinarily, wish to satisfy itself as to
whether the witnesses whom the party seeks to call on the adjourned date are material witnesses; and whether there is a reasonable expectation (not a certainty) that the attendance of such witnesses will be procured on the adjourned date.
The fact that these two basic requirements are met does not mean that the court must necessarily exercise its discretion in favour of an adjournment. Other circumstances which would bear upon the exercise of a discretion include the following:
the length of the adjournment sought; how long the case has been pending; the duration of and reasons for any previous adjournments; whether or not there has been any remissness from the party seeking the adjournment and, if so, the degree and nature of such remissness; the seriousness of the offence with which the accused is charged; the attitude and the legitimate and reasonable needs and concerns of the adversary of the party seeking the adjournment; the resources and capacity and ability of the party affected by the adjournment to protect and advance its case on the adjourned date; the financial prejudice caused to such party by the adjournment; the public interest in the matter; and whether or not the accused is in the interim to be kept in custody.
Facts
The accused, an Irish citizen, had been charged with the murder of a prominent member of SWAPO. He had been arrested on 13 September 1989, and had been in continued custody thereafter. The accused was to be arraigned on the charge of murder in the Supreme Court on 18 April 1990. On 2 March, the investigating officer had procured warrants for the arrest of two South Africans suspected of complicity in the murder. No trace of the two could be found prior to the independence of Namibia on 21 March 1990, although they surfaced openly in South Africa thereafter.
The State also required the presence of four South African witnesses, upon whom subpoenas were served, through their legal representative, on 2 April. With the advent of independence, the Namibian State no longer had the means to compel the attendance of any of the six South Africans. When the accused appeared in the High Court on 18 April, the State sought an adjournment of some six weeks to enable it to procure the attendance of the six absentees.
It was the State's case that the evidence sought to be led by the four witnesses was material, in that such evidence would show that the accused had had a motive to kill the deceased. It was submitted that such evidence would show that the accused had been connected with the Civil Co-operation Bureau (a division of the Department of Defence of the Republic of South Africa), which body had had an interest in eliminating the deceased. The joinder of the two co-accused was contended to be important in order to strengthen the State's case against the accused, because it would render admissible against the accused certain additional evidence on the basis of common purpose.
It was pointed out, for the accused,
that the absentees were resident in a foreign jurisdiction; that, on the evidence of the investigating officer, there appeared to be no reasonable prospect of their voluntarily coming to Namibia either as witnesses or to stand trial as co-accused; and that, as experienced policemen, they had the knowledge and skills to avoid apprehension.
The response of the State was that the machinery of international diplomacy might secure the appearance of the absentees in court.