CASE NO.: A 22/2011

IN THE HIGH COURT OF NAMIBIA

In the matter between:

PAULUS TUHAFENI SHEEHAMA v MINISTER OF SAFETY AND SECURITY AND OTHERS

PARKER J

2011 March 17

Namibian Constitution - Applicant alleging violation of his Article 11 (3) basic human right - Court finding sufficient and incontrovertible evidence exist on the papers showing that the applicant was not brought before a magistrate or other judicial officer within 48 hours of his arrest and no evidence was placed before the magistrate to show why that was not reasonably possible - Court finding further that when applicant was eventually brought before the magistrate the applicant had been detained in custody beyond 48 hours without the authority of a magistrate or other judicial officer -Consequently, Court finding that the order of the magistrate purporting to authorize the further unlawful detention of applicant was in violation of Article 11 (3) of the   Constitution   and   therefore   unconstitutional   -
Accordingly, in pursuance of Article 25 (3) Court ordering the immediate release of applicant from further unlawful detention as necessary and appropriate to secure for applicant the enjoyment of his Article 11 (3) basic human right.

of the Constitution to secure enjoyment of Article 11 (3) basic human right - Application brought as urgent application - Court finding that on the facts and in the circumstances of this case and because the matter concerned the personal liberty of the applicant the application merited to be determined on urgent basis.

							CASE NO.: A22/2011

IN THE HIGH COURT OF NAMIBIA
In the matter between:

PAULUS TUHAFENI SHEEHAMA				Applicant

and

THE STATION COMMANDER 

MRS V STANLEY, MAGISTRATE,

Heard on:								2011 February 23

Delivered (reasons) on:						2011 March 17

JUDGMENT

[2] The application was brought to enforce the applicant's basic human right guaranteed to him by Article 11 (3) of the Namibian Constitution which provides:

'…..although the accused was arrested on 14 February 2011 and was brought to court only today (i.e. 17 February 2011) we do not know why that is so.'

[4] The gravamen of Ms Koita's argument goes briefly as follows. The applicant was brought before the learned magistrate on 17 February 2011, that is, after the expiration of the forty-eight-hours constitutional time limit, and so the applicant should not feel aggrieved. After all, Ms Koita's   argument   proceeded,   the   learned   magistrate   ordered   the applicant's further detention when the applicant was brought before that learned magistrate on 17 February 2011, that is, as I say, after the expiration of the absolutely peremptory forty-eight-hours time limit.

[6] Furthermore, in order to find a peg on which to hang her argument that the continued detention of the applicant is not unlawful, Ms Koita submitted that the learned magistrate 'ordered the further detention of the applicant' when the applicant was at last brought before the said learned magistrate. This submission, with the greatest deference to Ms Koita, is self-serving, dangerous and fallacious. The width of the wording of Article 11 (3) debunks counsel's submission.

'Although it is indeed unlawful for an accused person to be detained for more than 48 hours after his arrest and before being brought to court, this does not necessarily empower this court to summarily release the accused person.'

Thus, without a doubt, the learned magistrate saw the unlawfulness of not bringing the applicant before her within 48 hours of his arrest; even if she wringed her hands, not sure what to do in the circumstances. The public prosecutor also saw the unlawfulness of not bringing the applicant before the magistrate within 48 hours of his arrest; even if he also only moaned helplessly about it. Unfortunately, it is only Ms Koita who does not see the unlawfulness of the failure to bring the applicant before the magistrate within 48 hours of the applicant's arrest. And what is more, any order purporting to authorize the further detention of the applicant by the learned magistrate, as argued by Ms Koita, had the unacceptable effect of the learned magistrate authorizing the continued unlawful detention. Any such order was in clear violation of Article 11 (3) of the Constitution and therefore unlawful. In any case, the public prosecutor in question, as we have seen previously, did not know 'why that is so', that is, why the applicant was not brought before the magistrate within 48 hours of his arrest. The effect of the public prosecutor's statement is significant: it goes to establish that no evidence was placed before the learned magistrate to enable her to consider whether she was satisfied as to why it was 'not reasonably possible' for NAMPOL to have brought the applicant before the learned magistrate within 48 hours of the applicant's arrest. All this goes to bury Ms Koita's argument - which I find to be without a modicum of merit - that the learned magistrate 'ordered the further detention of the applicant' when the applicant was at last brought before the said learned magistrate on 17 February 2011.

[8] For all the aforegoing, I conclude that the applicant's basic human right guaranteed to him by Article 11 (3) has been violated; and so, doubtless, the applicant is an aggrieved person within the meaning of Article 25 (2) of the Namibian Constitution, and he has approached the
Court for protection by enforcing that right on urgent basis. In my opinion, on the facts and in the circumstances of this case and because the matter concerns the personal liberty of an individual, an application to secure the enjoyment of the right that has been violated must be determined on urgent basis. This conclusion is so logical, reasonable and fundamental that I do need to cite any authority in support thereof. Thus, in pursuance of Article 25 (3) the only order that is 'necessary and appropriate' to secure the applicant's enjoyment of his Article 11 (3) right is to order his immediate release from further unlawful detention.

PARKER J

COUNSEL ON BEHALF OF THE APPLICANT:
Mr N Swarts

Ms Koita
Instructed by:					The Government Attorney