Court name
Supreme Court
Case name
S v Delie
Media neutral citation
[2001] NASC 5











SA
02/2001


IN
THE SUPREME COURT OF NAMIBIA





In
the matter between:





THE
STATE APPELLANT





AND





DAVID
AMBROSE DELIE
RESPONDENT





CORAM: Strydom,
C.J., O’Linn, A.J.A. et Chomba, A.J.A.


HEARD
ON: 5 July 2001


DELIVERED
ON: 7 December 2001










APPEAL
JUDGMENT









STRYDOM,
C.J.:
Argument in this matter was heard during the July session
of this Court. As there were various issues on which the Court
required further argument Counsel for the appellant, Ms. Verhoef, and
Counsel for the respondent, Mr. Potgieter, were requested to provide
additional Heads of Argument in which these matters were addressed.
The appeal was postponed to 8 October for further oral argument, if
necessary. After having read the additional written submissions,
filed by both Counsel, it was decided that it was not necessary to
hear oral argument.





This
is a matter which started in the magistrate’s court where the
respondent was charged with contravening section 11 of Act 23 of
1963, namely failing to pay maintenance in terms of a court order.
The respondent pleaded guilty to the charge and was questioned by
the magistrate according to section 112 (1)(b) of Act 51 of 1977.
After questioning, the magistrate recorded that he was satisfied that
the accused admitted all the allegations in the charge and he was
convicted. The respondent was thereupon sentenced to 12 months
imprisonment of which 6 months were suspended on the usual
conditions. Because of the sentence imposed the matter went on
review in terms of the provisions of section 302 of Act 51 of 1977,
and was placed before a Judge of the High Court.





The
learned Judge, before whom the matter was placed, was not satisfied
that the conviction was in order and, correctly in my view, pointed
out that one of the answers given by the respondent, when he was
questioned by the magistrate in terms of section 112 (1)(b), raised
the defence set out in section 11 (3) of Act No 23 of 1963.
Subsection (3) provides that proof that any failure to pay
maintenance was due to lack of means not attributable to misconduct
shall be a good defence to such charge. The matter was then dealt
with in terms of section 304 of Act 51 of 1977 and two Judges of the
High Court came to the conclusion that the magistrate should have
entered a plea of “not guilty” and should have ordered the
prosecutor to proceed with the leading of evidence. The Court
thereupon set aside the conviction and sentence.





It
was at this stage that the Prosecutor-General entered the picture.
Although the Court on review was correct to set aside the conviction
and sentence, for the reasons set out in their judgment, the Court
however overlooked the provisions of section 312 of Act 51 of 1977
and failed to refer the matter back to the magistrate with
instructions to record a plea of “not guilty” and to proceed
with the leading of evidence. The appellant thereupon launched an
application for leave to appeal to the Supreme Court. At the
hearing of the application the Court was satisfied that it was
obliged, in terms of the provisions of section 312, to have referred
the matter back to the magistrate. It consequently granted leave
to appeal, not to the Supreme Court, but to the Full Bench of the
High Court.





When
the matter came before the Full Bench that Court, not surprisingly,
came to the conclusion that it had no jurisdiction to hear the appeal
and struck the matter from the roll. This decision is no doubt
correct, as there is no provision allowing for an appeal from a two
Judge Bench, sitting on appeal or review in a criminal matter, to the
Full Bench of the High Court.





That
was not the end of the problem because the appellant then noted an
appeal directly to this Court and did not again apply or petition for
leave to appeal. As a result of this, this Court then raised the
question whether it was not necessary for the appellant to first
obtain leave in order to be able to prosecute this appeal. If it
was necessary to obtain leave to appeal and if such leave had not
been granted by the Court a quo, then it seems to me that this
Court is the only Court left who could grant leave. The Court who
sat on the review and granted leave to appeal, albeit incorrectly, is
now functus officio. (See in this regard Baxter:
Administrative Law, p.375ff, and Sefatsa and Others v
Attorney-General and Another,
1989 (1) SA 821(AD) at 831I –
832A). The Full Bench of the High Court dealt with a nullity and
struck the matter from the roll. That Court, so it seems to me, had
no case before them in respect of which they could grant leave to
appeal. That leaves only a petition to this Court for leave to
appeal.





As
previously pointed out, Counsel were requested to file additional
heads of argument in which they were to deal with issues such as
section 16 of the Supreme Court Act, Act 15 of 1990, whereby this
Court can mero motu deal with irregularities which occur in
proceedings; whether this Court has an inherent jurisdiction to grant
leave to appeal, and whether the leave that was granted by the Court
a quo was effectively granted to this Court. Because of the
conclusion to which I have come it is not necessary to deal with all
these issues.





Whether
leave to appeal was necessary in this instance must in my opinion be
determined according to the provisions of the Supreme and High Court
Acts and the Criminal Procedure Act. The section in the Criminal
Procedure Act, Act 51 of 1977, (the Act), dealing with appeals from
the High Court sitting on appeal, is section 311. This section was
amended by Act 26 of 1993 where the Prosecutor-General was given
extensive powers of appeal. This section, so far as is relevant,
now reads as follows:






311(1) Where
the High Court on appeal, whether brought by the Prosecutor-General
or other prosecutor or the accused, gives a decision in favour of
(the Prosecutor-General or other prosecutor or the accused)
the Prosecutor-General or other prosecutor or the accused against
whom the decision is given, as the case may be, may appeal to the
Supreme Court which shall, if it decides the matter in issue in
favour of the appellant, set aside or vary the decision appealed
from, and if the matter was brought before the High Court in terms of






(a) Section
309(1), reinstate the conviction, sentence or order of the lower
court appealed from either in its original form or in such modified
form as the Supreme Court may consider desirable; or






(b) Section
310(1), give such decision or take such action as the High Court
ought, in the opinion of the Supreme Court, to have taken, including
any action under section 309(3).






(2) The
provisions of section 316 in respect of any application or appeal by
an accused referred to in that section, shall apply mutatis
mutandis
with reference to an appeal in terms of subsection (1)





(3) ……………………….”



(The
words appearing in brackets and which are italicized, in
subsection(1), were left out from the amended section, clearly as a
result of a typographical error. As pointed out by Counsel this did
not change the meaning of the section.)






The
application of the provisions of section 316 mutatis mutandis
to section 311 mean, inter alia, that when the
Prosecutor-General, other prosecutor or accused are dissatisfied with
a decision or order given by the High Court on appeal, they would
first need to obtain leave to appeal if they want to take the matter
further on appeal to the Supreme Court.





Ms
Verhoef submitted that the wording of section 311 is wide enough to
also include the appeal in this particular instance which was
initially dealt with by the Judges of the High Court according to the
provisions of section 304(2)(a). However Counsel said that there
was a conflict between the provisions of section 311 of the Act and
section 18 of the High Court Act, Act 16 of 1990, in so far as
section 18 granted a direct right of appeal to the Supreme Court and
section 311, as amended, now purports to require of the
Prosecutor-General to first obtain leave to appeal. As the right to
appeal in terms of section 18 was not expressly repealed Counsel
submitted that the appellant did not need leave to appeal.





Mr.
Potgieter, on the other hand, submitted that the provisions of
section 311 of the Act were not applicable to the present appeal as
this was not a matter, which was brought on appeal to the High Court
by the Prosecutor-General, the other prosecutor or the accused.
Counsel was further of the opinion that subsection (2), by referring
to “an accused” only applied the provisions of section 316 to
when an accused wanted to appeal. That, according to Counsel, also
raised problems in regard to the interpretation of subsection (3) of
section 311. I agree with Ms. Verhoef that Mr. Potgieter has misread
the reference to “an accused” in subsection (2) as these words,
where used, refer to an application for leave to appeal by an accused
in terms of section 316 and applies those provisions to section
311(1) so that every one who appeals in terms of section 311 must
obtain leave to appeal.





Section
311(1), as amended by Act No. 26 of 1993, gave wide powers of appeal
to the Prosecutor-General almost tantamount to that, which previously
were only accorded to accused persons. Prior to this amendment the
Prosecutor-General could only appeal if a decision was given in
favour of a person convicted on a question of law. In S v Absalom
1989 (3) SA 154 (AD) at l65 I-J - 166 A the South African Appeal
Court pointed out that for the prosecution to obtain a general right
of appeal would require an express provision to establish such right.
No doubt such provision would have to be a statutory one. The
Prosecutor-General will therefore only be able to appeal in those
instances where such a right is expressly granted by the Act.





It
is therefore first of all necessary to determine whether the present
appeal, as far as the Prosecutor-General is concerned, is covered by
section 311. Ms. Verhoef submitted that the wording of section 311
is wide enough to include the appeal in this instance. I agree with
Counsel. I can see no reason why the words “on appeal” as they
appear in the first sentence of section 311, namely “Where the High
Court on appeal…..”, should not be given the wide meaning
ascribed to more or less similar wording used in section 21(2)(a) of
Act 59 of 1959 (the Supreme Court Act of South Africa, since
amended). When interpreting this latter section the South African
Appeal Court in Sita v Olivier NO, 1967 (2) SA 442(AD)
concluded that the words “on appeal to it”, contained in the
section, were of wide application and would also include proceedings
in the nature of a review (see p. 447 to 448).





Although
the present matter came before the High Court as an automatic review
in terms of section 302 of the Act, and not at the instance of either
the Prosecutor-General or the accused, section 304(2)(a) provides
that if the reviewing Judge is not satisfied that the proceedings are
in accordance with justice he shall obtain reasons from the presiding
officer and shall then “lay the record of the proceedings and the
said statement before the court of the provincial division having
jurisdiction for consideration by that court as a court of
appeal.
” (my emphasis.) This being the case there can in my
opinion not be any doubt that the present proceedings are covered by
the words “on appeal” where they appear in section 311.





However,
Mr. Potgieter submitted that the words “on appeal” in the section
were qualified by the words which follow immediately thereon namely,
“whether brought by the Prosecutor-General or other prosecutor or
the accused…..” In other words Counsel submitted that if the
matter did not come on appeal before the High Court at the instance
of one of the three parties, section 311 would have no application.
If Counsel were correct it would lead in my opinion to various
anomalies. It would firstly deprive the Prosecutor-General and/or
other prosecutor of a right of appeal in the present situation. This
is so because section 311 is the only possible section that could
establish for the Prosecutor-General and other prosecutor a right of
appeal in this instance. I can think of no reason why this should
be so, given the fact that most decisions of the High Court on review
go against the Prosecutor-General and in favour of the accused.
Furthermore it is clear that it was the intention of the Legislator
to grant to the prosecution wide powers of appeal. That is
demonstrated by the amendments introduced by Act 26 of 1993. Lastly
it would mean that an accused would, in this instance, have the
right to appeal directly to the Supreme Court without first obtaining
leave to appeal when it is clear that it was not the intention of the
Legislator to grant a right to appeal directly to the Supreme Court.
As was stated by Innes CJ in R v Keeves, 1926 A.D. 410 that
that would be a remarkable position if in the one instance special
leave to appeal is required and in the other instance it could be
taken as of right (p412).





In
addition to what is set out above I am satisfied that interpreting
the section in context the meaning ascribed to it by Mr. Potgieter
cannot hold water. Looking at the purpose of section 311 it is
clear that it was the intention of the Legislator to grant to the
Prosecutor-general, the other prosecutor and the accused a right of
appeal, subject to leave being first obtained, to the Supreme Court
from decisions of the High Court given on appeal to it. The
intention of the Legislator in enacting section 311 was not to grant
thereby a right of appeal to these parties from a lower court.
That was achieved by sections 304(2)(a), 309 and 310. It therefore
seems to me that nothing turns upon the words “whether brought by
the Prosecutor-General or other prosecutor or the accused”, where
they appear for the first time in section 311. Even if these words
are regarded as pro non scripto section 311 will still achieve
its purpose. This is so because the section spells out who may
appeal to the Supreme Court, namely the Prosecutor-General, other
prosecutor and accused, and further provides that such an appeal lies
where the High Court on appeal gives a decision or order against one
or other of these parties.





In
the present instance the order of the Court-a-quo, whereby the
conviction and sentence of the accused were set aside, is a judgment
or order in favour of the accused which, in terms of the provisions
of section 311(1), would entitle the Prosecutor-General to take the
matter on appeal to the Supreme Court.





Under
the circumstances I therefore agree with Counsel for the appellant
that section 311 of the Act covers the present appeal and that the
Prosecutor-General has the necessary authority, in terms of the
section, to take the matter on appeal to this Court.





The
next question, which must then be answered, is whether the
Prosecutor-General requires leave to appeal to bring this matter
before the Supreme Court. In terms of sec. 316 of the Act leave to
appeal must be obtained from the Court a quo and if leave is
refused then the appellant must petition the Chief Justice. It is
common cause that such leave was not petitioned prior to the hearing
of this appeal. Counsel for the appellant based her submissions that
in this instance the appellant had a right of appeal directly to this
Court on the wording of section 18(1) of the High Court Act, Act 16
of 1990. This section provides as follows:






18(1)
An appeal from a judgment or order of the High Court in any civil
proceedings or against any judgment or order of the High Court given
on appeal shall, except in so far as this section otherwise provides,
be heard by the Supreme Court.”





The
Full Bench of the High Court interpreted this section when the matter
came before them on appeal. The Court firstly found that the words
“…. any judgment or order of the High Court given on appeal….”
refer to civil as well as criminal matters. The second finding was
that, concerning further appeals to the Supreme Court, section 18 did
not contain any other provisions regarding judgments given by the
High Court in criminal matters on appeal to it. The Full Bench
consequently found that, in terms of the section, the appeal forum
was the Supreme Court and not the Full Bench and the Court
consequently struck the matter from the roll. Counsel, in this
Court, accepted these findings and in my opinion correctly so.





Against
this background Ms. Verhoef developed her argument. She submitted
that section 18 did not prescribe any procedures for appeals against
a judgment or order of the High Court given on appeal. Counsel
pointed out that the predecessor of Act 16 of 1990, namely
Proclamation 222 of 1981, contained a provision in section 14(4)(b)
in terms of which leave was required to appeal against any judgment
or order of the High Court given on appeal in the then South West
Africa. Counsel therefore submitted that the fact that the
Legislator specifically excluded the phrase “or against any
judgment or order of the High Court given on appeal to it” when it
enacted section 18(2), it now vested an appellant with a right to
appeal to the Supreme Court against a judgment or order of the High
Court given on appeal where such right existed before the
promulgation of Act 26 of 1993. Counsel therefore submitted that
section 311(2), as amended by Act 26 of 1993 and in terms of which
leave to appeal is now required, did not affect an appellant’s
right of appeal which was granted him by section 18 of Act 16 of 1990
and which right existed prior to Act 26 of 1993.





If
I understand Ms. Verhoef correctly she argued that the right of the
Prosecutor-General to appeal directly from a decision of the High
Court given on appeal, to the Supreme Court, existed, by virtue of
section 18 of Act 16 of 1990, prior to the amendment effected by Act
26 of 1993 and as that right was not specifically repealed the
Prosecutor-General has a vested right which was not affected by the
amendment. Counsel therefore submitted that the conflict existing
between section 18 of Act 16 of 1990 and section 311(2) of Act 51 of
1977, can only be resolved by the Legislator.





I
do not agree with Counsel. It seems to me that she has overlooked
the fact that prior to the amendment of section 311 by Act 26 of 1993
the right of the Prosecutor-General to appeal was extremely limited
and was confined to decisions of the High Court given on appeal in
favour of the person convicted, and then only on a question of law.
The amendment brought about a new scheme whereby the limited right of
the Prosecutor-General to appeal was extended to almost the same as
that of an accused person. It is in this regard that the
Prosecutor-General is required to first obtain leave to appeal to the
Supreme Court. Under the circumstances, and bearing in mind the
limited right of the Prosecutor-General to appeal before the
amendment, there can be no question of a vested right. Furthermore
if, as was submitted by Ms. Verhoef, the provisions of sec 311, as
amended, are in conflict with section 18 of Act 16 of 1990 then this
is an instance where the later legislation would by implication amend
the provisions of the earlier legislation to the extent that they are
inconsistent with the later Act. (See Government of the Republic
of South Africa and Another v Government of Kwazulu and Another,
1983
(1) SA 164(AD) at p 200ff and Minister of Police v Haunawa,
1991 NR 28(SC) at p 32 to 33). However, for the reasons set out
before, I am of the opinion that there is no such conflict as
contended for by Counsel.





Section
14 of the Supreme Court Act, Act 15 of 1990, is also important.
Subsection (1) grants a right of appeal to the Court from any
judgment or order of the High Court subject to the provisions of the
Supreme Court Act or any other law. Subsection 2(b) provides that
such appeals shall be subject to the provisions of any law which
specifically limits it or specifically grants, limits or excludes
such right or which prescribes the procedures that have to be
followed in the exercise of that right. In the present instance
section 311(2) provides that the Prosecutor-General must obtain leave
in order to prosecute an appeal before this Court against a judgment
or order of the High Court given on appeal.





In
the alternative, and if this Court should find that leave to appeal
was necessary, then Ms. Verhoef submitted that such leave was in fact
granted by the Court a quo. Mr. Potgieter, on behalf of the
respondent, supported this submission.





It
seems to me that there is substance in the submission made by
Counsel. Both Counsel pointed out that the Court a quo was
satisfied that leave to appeal should be granted. It in fact granted
leave to appeal but added, erroneously, that the appeal be heard by
the Full Bench of the High Court. It is clear that the Court a
quo
could not in law, or on any other basis, grant leave to
appeal to the Full Bench. (See the unreported judgment of Hannah,
J., in David Ambrose Delie, delivered on 2001/03/19 in which
Maritz and Mainga, J.J., concurred). Consequently this part of the
order is a nullity and can be regarded as pro non scripto.
(See S. v Absalom, supra, at p. 164E – G.) Under
the circumstances it seems to me that Counsel are correct and that
the order whereby leave was granted should be read together with
section 18 of Act No. 16 of 1990 and that in terms thereof the leave
granted could only be to this Court.





I
further wish to point out that the order which was made against the
respondent by the magistrate was set aside by the High Court and
there may be uncertainty as to whether the respondent must, in the
meantime, continue to pay maintenance and, if so, in what amount. It
is therefore necessary that there not be any unnecessary delay in
bringing this matter to finalisation. In this regard I am pleased
to say that both Counsel were agreed that the appeal must succeed to
the extent that the matter should be referred back to the magistrate
to deal with it in terms of the provisions of section 113 of the Act,
i.e. to record a plea of not guilty and to require the prosecutor to
proceed with the prosecution. In the light of the mandatory
provisions of section 312 (1) of the Act I agree with Counsel.





In
the result the following order is made:






The
appeal succeeds and the following order is substituted for the order
made by the Court a quo:






The
conviction and sentence of the magistrate are set aside and the
matter is referred back to the magistrate to comply with the
provisions of section 113 of Act 51 of 1977, namely to record a plea
of not guilty and to allow the prosecutor to proceed with the
prosecution.





(signed)
STRYDOM, C.J.











I
agree.








(signed)
O’LINN, A.J.A.














I
agree.








(signed)
CHOMBA, A.J.A.

















COUNSEL
ON BEHALF OF THE APPELLANT: Adv. A. Verhoef



(Prosecutor-General)





COUNSEL
ON BEHALF OF THE RESPONDENT: Adv. J.D. Potgieter


(Amicus
Curiae
)