Court name
Supreme Court
Case name
S v Myburgh
Media neutral citation
[2002] NASC 16











CASE NO.: SA 21/2001


IN THE
SUPREME COURT OF NAMIBIA





In the
matter between:





PIETER
JOHAN MYBURGH APPELLANT





AND





THE
STATE RESPONDENT





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


HEARD ON:
19 June 2002


DELIVERED
ON: 14/10/2002










APPEAL JUDGMENT









O’LINN,
A.J.A.
:


SECTION
A:


INTRODUCTORY
REMARKS:





The appellant appeals, with leave of this Court
against a finding of the Court a quo against the rejection of
his application for a permanent stay of prosecution and against the
sentence imposed on 2 counts of fraud.





The
appellant was represented before us by Mr. Du Toit, S.C., assisted by
Mr. Grobler. The respondent was represented by Mr. Small, a
representative of the Prosecutor-General.





Counsel on
both sides provided this Court with detailed and well-researched
heads of argument as well as the viva voce arguments which
were extremely helpful.





The
background to this appeal is as follows:






“1. On 30 November 2000 the Appellant was found guilty of three
counts of fraud, the State having withdrawn four other counts of
fraud on which the Appellant originally appeared before the
Honourable Mr. Justice Mainga from 2 August 1999 in the High Court of
Namibia.








  1. On 14 December 2000 the Appellant was sentenced as follows:








2.1 Count 5 (Gagiano): Three years imprisonment of which two years
were suspended;







2.2 Count 6 (Kheimseb): Four years imprisonment;







2.3 Count 7 (Seibeb): Four years imprisonment.






The Appellant
therefore received an effective period of nine years imprisonment in
respect of the conviction of the three counts of fraud.








  1. On 22 March 2001 the Appellant’s application in the Court a quo
    for leave to appeal against sentence, was dismissed.









  1. The Appellant petitioned the Honourable Chief Justice and leave was
    granted as follows:










    1. Against sentence on counts 6 and 7;











    1. Against the refusal of the Trial Court to grant Appellant’s
      application for the stay of the criminal proceedings on the basis
      of a lack of urgency and against the accompanying cost order.










  1. Leave against the convictions was not granted, nor was leave to
    appeal against the sentence on count 5.”






The background to the appellant’s application for the stay of
the criminal proceedings:


1. On 2 August
1999, before the trial on the merits commenced, application was made
for a permanent stay of the criminal proceedings against the
Appellant, on an urgent basis.







  1. The
    Trial Court refused the application for the permanent stay of the
    criminal proceedings and gave as its only reason that the Appellant
    failed to show that the matter was urgent; it was ordered that the
    criminal trial proceed. No formal judgment was handed down.








  1. On 14
    August 2000 an application for leave to appeal against the judgment
    of Mr. Justice Mainga in refusing the application for the permanent
    stay was filed, but was turned down on 14 December 2000.







  1. The
    application for a permanent stay of the criminal proceedings was
    brought on the following main grounds, as set out in the appellant’s
    heads of argument on appeal:











“1. The complainant (Commercial Bank) laid criminal charges against
the Appellant on 13 July 1996;









    1. Detailed negotiations between representatives of the complainant
      and the Appellant took place and continued in an attempt to resolve
      the differences and the disputes in existence.











    1. During the discussions and negotiations the Appellant made detailed
      and extensive disclosure of facts known to him as well as his
      defence to the allegations of fraud.











    1. The Appellant was not warned of his right to remain silent and was
      unaware of the fact that the complainant intended making use of the
      information gained during the discussions and negotiations in
      subsequent criminal proceedings.











    1. The Appellant furthermore discussed the allegations made against
      him with the police officer in charge of the investigation,
      Inspector Oelofse, without being warned of his right to remain
      silent.











    1. It was only on 26 July 1996 that the Appellant was arrested without
      warning.











    1. Also on 26 July 1996 the complainant brought an application for the
      sequestration of the Appellant. In support of the application for
      sequestration the complainant filed the affidavits of one Willie
      Dames, containing a series of allegations which appellant described
      as untrue. The Appellant laid a charge of perjury against Willie
      Dames.











    1. The Appellant also laid charges of perjury against certain
      officials of the complainant for reasons set out fully in the
      Appellant’s founding affidavit to the application.











    1. As a result of the charges brought against Dames and the officials
      of the complainant, the Appellant discussed in detail the merits of
      the allegations of fraud brought against him by the complainant
      with officials of the Office of the Prosecutor-General. These
      officials included Dr. N. Horn and Advocate D.F. Small. Advocate
      D.F. Small subsequently appeared for the State in the matter
      against the Appellant, and at no stage was the Appellant informed
      that the information disclosed by him would be used or could be
      used in the subsequent criminal trial of the Appellant.











    1. In the light of the abovementioned, the Appellant claimed before
      the Trial Court that he would be seriously prejudiced in his
      defence and that the trial against him should not proceed, since he
      will not be able to enjoy a fair trial.











    1. The Appellant also referred to certain irregularities he alleged
      was committed by the complainant, in support of his application for
      a permanent stay of criminal proceedings.











    1. Furthermore, and importantly, the Appellant also averred that he
      would be severely prejudiced because of the period of four years
      that lapsed before he was formally prosecuted.”







The main
ground on which leave to appeal against the verdict of the Court a
quo
in regard to the application for a permanent stay of
prosecution was granted, was that it appeared that the learned judge
a quo rejected the application on the sole ground that it was
not urgent and without going into the merits of the application at
all.





SECTION
B:


THE INTERPRETATION OF ART. 12(1)(a) AND (b) OF THE NAMIBIAN
CONSTITUTION AS A BASIS FOR AN APPLICATION FOR A PERMANENT STAY OF
PROSECUTION





The
appellant in this case relies primarily on sub-article 12(1)(b) read
with 12(1)(a) of the Namibian Constitution as the basis for his
application in the Court a quo for a permanent stay of
prosecution.





In another
appeal presently before this Court, namely Margaret Malama-Kean v
The Magistrate for the District of Oshakati NO and the
Prosecutor-General NO
, the accused similarly relies on the
provisions of Art. 12(1)(a) and (b) for her appeal.





Although
the two appellants were represented by different attorneys and
advocates, this Court had the benefit of hearing counsel in both
cases.





At the
outset it is best to set out the contents of the whole of Art. 12.
It reads:






“12 Fair Trial







(1) (a) In the determination of their civil rights and obligations or



any criminal chares against them, all persons shall be entitled to a
fair and public hearing by an independent, impartial and competent
Court or Tribunal established by law: provided that such Court or
Tribunal may exclude the press and/or the public from all or any part
of the trial for reasons or morals, the public order or national
security, as is necessary in a democratic society.







(b) A trial referred to in sub-article (a) hereof shall take place
within a reasonable time, failing which the accused shall be
released.







(c) Judgments in criminal cases shall be given in public, except
where the interest of juvenile persons or morals otherwise require.







(d) All persons charged with an offence shall be presumed innocent
until proven guilty according to law, after having had the
opportunity of calling witnesses and cross-examining those called
against them.







(e) All persons shall be afforded adequate time and facilities for
the preparation and presentation of their defence, before the
commencement of and during their trial, and shall be entitled to be
defended by a legal practitioner of their choice.







(f) No persons shall be compelled to give testimony against
themselves or their spouses, who shall include partners in a marriage
by customary law, and no Court shall admit in evidence against such
persons testimony which has been obtained from such persons in
violation of article 8(2)(b) hereof.







(2) No persons shall be liable to be tried, convicted or punished
again for any criminal offence for which they have already been
convicted or acquitted according to law: provided that nothing in
this sub-article shall be construed as changing the provisions of the
common law defences of “previous acquittal” and “previous
conviction”.







(3) No persons shall be tried or convicted for any criminal offence
or on account of any act or omission which did not constitute a
criminal offence at the time when it was committed, nor shall a
penalty be imposed exceeding that which was applicable at the time
when the offence was committed.










It is apparent from the structure of
Art. 12 that whereas subparagraph (a) of sub-article (1) deals with
certain basic requirements of a fair trial relating to the
determination of civil rights and obligations of persons as well as
criminal charges against them, subparagraphs (b) to (f) of
sub-article (1) as well as sub-articles (2) and (3) deal exclusively
with certain specific requirements for fair trials in criminal cases.





Furthermore no remedies are specified in
the event of a breach of any of these requirements, except in the
case of subparagraph (b) of article 12(1) wherein it is made
mandatory for the trial as described in subparagraph (a), “to take
place within a reasonable time, failing which the accused shall be
released”.





The principle and requirement that a
trial must take place within a reasonable time is established in the
Constitutions of the USA and Canada in provisions providing for a
speedy trial and in the criminal law systems of all democratic
countries. It is clearly a principle and requirement of
international law. So e.g. the International Covenant of Political
and Human Rights provides in Art. 14.3(c) as a “minimum guarantee”
that “Everyone charged with a criminal offence shall have the right
… to be tried without undue delay.” This Covenant has become
part of Namibian law.1





It is important to emphasize that the
principle and requirement of a “speedy trial” or “trial within
a reasonable time” has been accepted in South African and Namibian
common law and criminal law and procedure long before the entering
into force of the Namibian Independence Constitution on 21 March 1990
and the South African Interim Constitution of 1994 and final
Constitution of 1996. The significance of this fact is that the
common law has been developed by statute and court precedents into a
body of law not only recognizing the right of an accused to a trial
within a reasonable time as one of the many requirements of a fair
trial, but has provided remedies for ensuring a fair trial and for
even quashing a conviction and sentence where the accepted
requirements for a fair trial were not met.





Several provisions of the Criminal
Procedure Act were available to ensure a fair trial. So e.g. failure
to provide sufficient particulars to a charge or a charge not
disclosing an offence may lead to a quashing of the charge before
trial.2
This however, does not amount to a permanent stay of the
prosecution. The prerogative of the Attorney General to prosecute
was also not untouchable. Should he unreasonably and unduly delay
his decision whether or not to prosecute, it is conceivable that both
a victim and/or a private prosecutor or even an accused may apply to
Court to obtain a mandamus to decide, and if he has decided, then to
proceed with the prosecution, within a reasonable time.3





It was even possible and still is, to
sue the Attorney-General (after Namibian independence the
Prosecutor-General) for malicious prosecution, should the facts show
that he/she was acting maliciously.





Then section 317 of the Criminal
Procedure Act 51 of 1977 and its predecessor provides for a special
entry for the formulation of any alleged irregularity either during
or after the trial, which could lead to the quashing of any
conviction or sentence on appeal.





As was stated in State v Xaba4,
the basic concept underlying section 317(1) is that an accused be
fairly tried.”





But even though convictions and
sentences were often quashed on appeal subsequent to conviction and
sentence, because of irregularities committed during the trial and
even before the trial if related to the trial, a further prosecution
and retrial was not barred if the accused was not in jeopardy of
being legally convicted, such as e.g. where the Court did not have
the necessary jurisdiction to hear the matter.





A Court, in the exercise of its
discretion, could also refuse a further postponement, or put the
prosecution on terms, thus forcing the prosecution to proceed or
alternatively to withdraw the case against the accused. Section 6
(six) however expressly provides that such withdrawal does not amount
to an “acquittal”. Then of course an accused could be released
on his own recognisance or warning or on bail by the Court or in the
case of certain specified less serious offences, also by an officer
at a police station. Most of these methods were available and are
still available to prevent or minimise non-trial related prejudice.





Authoritative decisions of the South
African and Namibian Courts in regard to irregularities before trial
which led to convictions and sentences being set aside or an accused
being acquitted at the end of the trial, have recently been referred
to in the decision of this Court in the case of Monday v The
State
.5





Although many principles relating to a
fair trial were thus entrenched in the South African and Namibian
Law, the remedy of a permanent stay of the prosecution applied for
and granted at the pre-trial stage, was not resorted to as far as I
am aware in the period prior to Namibian independence. Be that as it
may, this fact serves to underline that a pre-trial remedy of a
permanent stay of prosecution, is an extraordinary remedy, certainly
to be reserved for exceptional circumstances.





Once the aforesaid principles and
requirements of a fair trial became embodied in article 12, they
became entrenched in the Supreme Law of Namibia as part of Chapter 3
of the Namibian Constitution and as such no longer at the mercy of
the Legislature or the Executive, even irrespective of security
considerations and the declaration of a State of Emergency, a State
of National Defence and Martial Law. Moreover, the provisions for
the fundamental rights and freedoms contained in Chapter 3 cannot be
repealed or amended by Parliament, in so far as such repeal or
amendment diminishes or detracts from the fundamental rights and
freedoms as contained and defined in Chapter 3.6





The only limitation upon the aforesaid
Fundamental Rights and Freedoms is that provided for in Art. 22,
which deals with limitations contemplated by Chapter 3 itself, such
as those apparent from the definition of the fundamental rights
themselves or provided for in Art. 21(2) in regard to fundamental
freedoms.





The Namibian Constitution is not only
unique in the world in regard to this feature of rigidity and
unamendability of the provisions for fundamental rights and freedoms,
but in its prescription of a mandatory sanction in par (1)(b) of Art.
12, should the trial as defined in 12(1)(a), not take place within a
reasonable time.





It is this mandatory remedy expressly
prescribed, which distinguishes this provision from “speedy trial”
provisions in the USA and in the rest of the world.





1. THE FIRST LEG OF THE ENQUIRY


Before dealing with the more difficult
and controversial issue of the interpretation of the words “shall
be released”, it is apposite to briefly deal with the
interpretation of the words in which the specific right under
12(1)(b) is formulated, namely:






“A trial referred to in sub-article (a) hereof shall take place
within a reasonable time.”





Although not specifically raised or
argued before us, I will assume for the purposes of this decision
that when the issue of whether or not art. 12(1)(b) has been complied
with must be decided, time begins to run from the time a person has
been arrested on a particular charge or when not arrested, from the
time that he is officially informed by the police or prosecutor of
the charge against him and some official action is taken against him
in regard to the charge, such as a summons served upon him to appear
in Court on a specified charge or given a warning to appear in Court
on a specified date on a specified charge.7





I assume also for the purposes hereof
that although not spelled out in the Namibian Constitution, the right
formulated in art. 12(1)(b) includes by implication that the trial
“begins and concludes without unreasonable delay”.





The South African Constitutional Court
pointed out that separate and distinct requirements of the right and
that of the remedy, should not be overlooked, even though the
analysis should not be performed in watertight compartments.





The Constitutional Court said:






“The first leg of the enquiry is whether the right under s.
25(3)(a) has been infringed. If not, that is the end of the matter.
If the right is found to have been infringed then the enquiry turns
to potential remedies under 7(4)(a). A finding that the
consequential relief sought is inappropriate must not be confused
with the antecedent finding as to infringement.”8









In my respectful view, this approach
should be applied mutatis mutandis, to the analysis to be
undertaken in Namibia.





The enquiry is a difficult one. This
was underlined in the Canadian decision of R v Morin in regard
to the wording of the speedy trial requirement of a fair trial:






“Though beguiling in its simplicity, the language has presented the
Court with one of the most difficult challenges in search of an
interpretation that respects the right of the individual in an era in
which the administration of justice is faced with dwindling resources
and a burgeoning case load …







Evidence presented to us indicates that between October 22, 1990 and
September 5, 1991, over 47 000 charges have been stayed or withdrawn
in Ontario alone. The reaction to this has been mixed…







On the other hand, many other deprecate what in their opinion amounts
to an amnesty for criminals, some of whom were charged with very
serious crimes. They assert that accused persons are discharged when
they have suffered no prejudice to the complete dismay of victims who
have suffered, in some cases, tragic losses.”9









In Namibia, the remedy provided - namely
“the accused shall be released”, complicates not only the
interpretation of this provision relating to a remedy, but
complicates the interpretation of the right – being the right to a
trial within a reasonable time.





The interpretation of the words
establishing the right as well as the remedy impacts on each other
and cannot be done in watertight separate compartments, even less so
than the enquiry about whether there was in fact a breach of the
right and the enquiry as to the applicable remedy. To illustrate:
Whether or not the words – “shall be released” must be
interpreted as providing exclusively for a permanent stay of
prosecution or at least a permanent stay as one of the mandatory
remedies in the discretion of the Court on the one hand, or merely
for a release from detention or a release from the pending trial, on
the other, is influenced by the interpretation of the words “within
a reasonable time” and vice versa.





This is so because an order for a
permanent stay of prosecution is an extreme, radical and exceptional
remedy. If according to the interpretation of the Court, the remedy
for the breach is a permanent stay of prosecution, as the only remedy
or even as one of several mandatory remedies, then the Court will be
inclined in its interpretation of the provision establishing the
right and its breach, to impose a greater and more onerous burden on
the applicant to establish a breach than would be the case if the
words “shall be released” are interpreted as merely mandating a
release from custody.





If however, the interpretation of the
right and the requirements for establishing a breach are relatively
onerous and difficult to establish, then a Court will be more
inclined to interpret the remedy as being a permanent stay of
prosecution, or at least a permanent stay as one of the mandatory
remedies.





The consequence is that when
interpreting the provision for the right and the remedy – the two
“legs” so to speak, must each be considered in conjunction with
the other.





In State v Strowitzki and Another,
the Court adopted the words of the learned judges in Baker v Wingo
where it was said:






“The approach we accept is a balancing test, in which the conduct
of both the prosecution and the defendant are weighed. A balancing
test necessarily compels courts to approach speedy trial cases on an
ad hoc basis. We can do little more than identify some of the
factors which courts should assess in determining whether a
particular defendant has been deprived of his right. Though some
might express them in different ways, we identify four such factors:
Length of delay, the reason for the delay, the defendant’s
assertion of his right, and prejudice to the defendant. The length
of the delay is to some extent the triggering mechanism. Until there
is some delay which is presumptively prejudicial, there is no
necessity for enquiry into the other factors that go into the
balance. Nevertheless, because of the impression of the right to
speedy trial, the length of delay that will provoke such an inquiry
is necessarily dependent upon the peculiar circumstances of the case.
To take but one example, the delay that can be tolerated for an
ordinary street crime is considerably less than for a serious,
complex conspiracy charge. Closely related to length of delay is the
reason the Government assigns to justify the delay. Here, too,
different weights should be assigned to different reasons. A
deliberate attempt to delay the trial in order to hamper the defence
should be weighed heavily against the Government. A more neutral
reason such as negligence or overcrowded courts should be weighed
less heavily but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the Government
rather than the defendant… We have already discussed the third
factor, the defendant’s responsibility to assert his right.
Whether and how a defendant asserts his right is closely related to
the other factors we have mentioned… We emphasise that failure to
assert the right will make if difficult for a defendant to prove that
he was denied a speedy trial. A fourth factor is prejudice to the
defendant. Prejudice, of course, should be assessed in the light of
the interests of defendants which the speedy trial was designed to
protect. This Court has identified three such interests: (i) to
prevent oppressive pre-trial incarceration; (ii) to minimise
anxiety and concern of the accused; and (iii) to limit the
possibility that the defence will be impaired. Of these, the most
serious is the last, because the inability of a defendant adequately
to prepare his case skews the fairness of the entire system. If
witnesses die or disappear during a delay, the prejudice is obvious.
There is also prejudice if defence witnesses are unable to recall
accurately events of the distant past.”









The Court then also specifically agreed
with the following remarks in Baker v Wingo dealing with
requirements of a “speedy trial”:






“Delay is not a uncommon defence tactic: … If the witnesses
support the prosecution, its case will be weakened, sometime
seriously so. And it is the prosecution which carries the burden of
proof. Thus, unlike the right to counsel or the right to be free
from compelled self-incrimination, deprivation of the right to a
speedy trial does not per se prejudice the accused’s ability to
defend himself.







Finally, and perhaps most importantly, the right to speedy trial is a
more vague concept than other procedural rights. It is, for example,
impossible to determine with precision when the right has been
denied. We cannot definitely say how long is too long in a system
where justice is supposed to be swift but deliberate. As a
consequence there is no fixed point in the criminal process when the
State can call upon the defendant to make the choice of either
exercising or waiving the right to a speedy trial.”10









The factors to be considered in deciding
when “long is too long” were summed up in the Canadian case of R
v Morin
and accepted as useful guidelines in Strowitzki.
They are:





“1. Length of delay;



  1. waiver of time periods;


  2. the reasons for the delay



    1. inherent time requirements of the
      case;


    2. actions by the accused;


    3. actions of the Crown;


    4. limits on institutional resources;


    5. other reasons for the delay; and



  3. prejudice to the accused.11






There is little or no discernible
difference between Strowitzki and the Namibian cases that followed in
regard to the interpretation of the terms “within a reasonable
time”.





In Heidenreich it was said:






“Reasonable is of course a relative term and what constitutes a
reasonable time for the purposes of Art. 12(1)(b) must be determined
according to the facts of each individual case. The Courts must
endeavour to balance the fundamental right of an accused to be tried
within a reasonable time against the public interest in the
attainment of justice in the context of the prevailing economic,
social and cultural conditions to be found in Namibia… What is
required at the end of the day is a value judgment. …”12









In the following Namibian decision, that
of Van As & Another v Prosecutor-General, Namibia,13
no effort was made to interpret the words “within a reasonable
time” but emphasis was placed on the meaning of the words –
“shall be released”.





Again in the Malama-Kean decision
of the High Court, the approach in Heidenreich in this regard
was merely reaffirmed, but the interpretation of the words “shall
be released”, concentrated on.





The decisions of the Constitutional
Court in South Africa, proceeded in substance on the same lines as
those already discussed to establish what was meant by the words
“within a reasonable time”.14





2. THE SECOND LEG OF THE ENQUIRY


I can now turn to the second leg of the
enquiry, being the interpretation of the words “shall be released”.





Those who drew up the South African
Interim Constitution in 1994 and its final Constitution in 1996,
which followed upon the Namibian Constitution and which had the
Namibian Constitution as a precedent, clearly declined to follow the
Namibian precedent in regard to the prescription of a remedy.





In South Africa the writers of both the
1994 Interim Constitution and the final Constitution in 1996,
prescribed a general remedy for the breach of any fundamental right
and left it to the Court to exercise its discretion within the wide
parameters of the Constitution. Section 7(4)(a) of the Interim
Constitution merely provided that the Court shall apply an
“appropriate remedy” or “combination of remedies” whereas
Art. 38 of the Final Constitution provided that the Court “may
grant appropriate relief, including a declaration of rights”.





Mr. Small, for the State, was the only
counsel who traced a Constitution where the words – “shall be
released” were used as part of the specific sanction prescribed for
instances where a person “arrested or detained”, “is not tried
within a reasonable time”. This is Art. 15(3) of the Constitution
of Jamaica, which reads as follows:






“…if any person arrested or detained … is not tried within a
reasonable time, then, without prejudice to any further proceedings
which may be brought against him, shall be released either
unconditionally or upon reasonable conditions, including in
particular such conditions as are reasonably necessary to ensure that
he appears at a later stage for trial or for proceedings preliminary
to trial.”








The right protected is that of a person
arrested or detained and the remedy is a release from such arrest or
detention, not amounting to a permanent stay of prosecution.





A general remedy for the breach of any
of the Namibian fundamental rights and freedoms and which corresponds
to the aforesaid South African remedy for such a breach, is contained
in Art. 25 of the Namibian Constitution, sub-article (3) and (4) of
which provides:






“(3) Subject to the provisions of this Constitution, the
Court referred to in sub-article (2) hereof shall have the power to
make all such orders as shall be necessary and appropriate to
secure such applicants the enjoyment of the rights and freedoms
conferred on them under the provisions of the Constitution, should
the Court come to the conclusion that such rights or freedoms have
been unlawfully denied or violated, or that grounds exist for the
protection of such rights or freedoms by interdict.






(4) The power of the Court shall include the power to award
monetary compensation
in respect of any damage suffered by the
aggrieved persons in consequence of such denial or violation of their
fundamental rights and freedoms, where it considers such an award to
be appropriate in the circumstances of particular cases”


(My
emphasis added.)









The aforesaid sub-articles thus give the
competent Court the power to make any order necessary and
appropriate, which include interdict and damages. A permanent stay
of prosecution is consequently clearly included as one of a range of
possible remedies in the discretion of the Court. One would have
thought that the founding fathers would have been satisfied with
these wide partly discretionary powers, making it unnecessary and
even inappropriate to add the specific and mandatory remedy for a
breach of the right of a accused to a trial within a reasonable time.
The words – “shall be released”, merely complicates and
confuses the issue. What was intended by the founding fathers is
difficult to imagine. Unfortunately the proceedings of the sessions
of the General Assembly of the Constituent Assembly does not reflect
any debate by the representatives or their legal advisers on the
issue and the minutes of the Committees of the Constituent Assembly
are not freely and readily available to facilitate a study by counsel
or the Court of these minutes in order to establish or at least to
attempt to establish, what the founding fathers had in mind. But
from what has been available to the Court, it seems that issues such
as these were left to the discretion of the available legal advisers.





It seems therefore that at present,
there is little or no assistance which this Court can derive from a
reference to and study of the minutes of the said Constituent
Assembly and its Committees.15





In view of the fact that sub-article (3)
of article 25 of the Constitution makes the said wide discretion of
the Court “subject to the provisions of this Constitution”, those
powers would be subject to article 12(1)(b) which makes it mandatory
for the Court to order the release of the accused, should the trial
not take place within a reasonable time





If the intention was to allow any one or
more of the remedies “release from custody”, “release from
onerous conditions of bail”, a “stay of prosecution”, whether
temporary or permanent, then those remedies would have been
adequately covered by the powers provided under sub-articles (2) and
(3) of articles 25 and the mandatory provision that the accused
“shall be released” if the trial does not take place within a
reasonable time as provided in part 12(1)(b) would be superfluous and
without any purpose.





It seems that the only way that Art.
25(2) and 25(3) could legally co-exist with Art. 12(1)(b), is if it
could be said that in Art. 12(1)(b), it was intended to provide for a
specific but limited breach of the requirements of a fair trial –
namely the requirement that the trial shall be held within a
reasonable time and that the remedy for that particular breach shall
be limited to the “release”, of the accused.





It further follows that if the breach is
a breach other than the mere failure of the trial to take place
within a reasonable time, then Art. 12(1)(b) will not apply. Art.
25(2), (3) and (4) will then apply and the remedy will be sought and
given in accordance with Art. 25(2) read with Art. 25(3). Art.
25(2), 25(3) and 25(4) read with article 5, provides comprehensive
remedies, in the discretion of the Court, which will include an
appropriate remedy for failure of a trial to take place within a
reasonable time.





The problem which has crystalized in
this case, is a Namibian problem in the first place, emanating from a
peculiar and unique provision of the Namibian Constitution.
Decisions in the South African Courts and the courts of the USA,
Canada, Great Britain and other democracies, are consequently not
directly in point and not very helpful in regard to the provision:
“shall be released”. The Namibian High Court has however,
attempted to come to grips with this difficult and important problem
on various occasions but the solutions found were not uniform. It
has now become necessary for this Court to strive to provide an
authoritative and binding final decision.





In the first case where an attempt was
made to address the difficult problem of interpreting the words
“shall be released”, the accused had applied before plea for an
order “quashing and permanently staying the criminal proceedings”.
The application was based on the alleged failure of the trial to be
held within a reasonable time, combined with several other alleged
irregularities16.
The Court interpreted the words in Art. 12(1)(b) which read:






“A trial referred to in sub-article (a) hereof shall take place
within a reasonable time, failing which, the accused shall be
released.”










The Court commented as follows on the
remedy provided by the words “shall be released”:






“A permanent stay amounts to a dismissal with prejudice. This
according to certain writers is only permissible where the ability of
the accused to defend himself or herself is gravely infringed. See
71 L Ed 2 at 990 where the following comment appears:





‘According
to one commentator, Amsterdam. Speedy Criminal Trial: Rights and
Remedies, 27 Stanford L Rev 525 (February 1975), the proposition that
the only remedy for the violation of the right to a speedy trial is
dismissal with prejudice is incredible. The commentator suggested
that the Supreme Court, in the case of Strunk v United States
(1973) 412 US 434, 37 L Ed 2d 56, 93 S Ct 2260, was merely stating
that dismissal with prejudice is an exclusive post trial remedy, as
the Strunk case came to court after conviction. The author
noted that the lower federal courts in the past have included
dismissal without prejudice, the expediting of the trial, and
discharge from custody as remedies for the rights violation, and
noted that the English Habeas Corpus Act of 1979 provided that
persons not timely tried should be discharged from imprisonment. The
commentator stated that the speedy trial clause is designed to
protect three distinct interests: (1) the undue incarceration of an
accused prior to trial, (2) the prolongation of anxiety and other
vicissitudes accompanying public accusation, and (3) the possibility
of the ability of the accused to defend himself. Only where the third
interest is violated in a particular situation, according to the
commentator, should dismissal with prejudice be the remedy.’






The Namibian constitution provides a specific remedy for failure to
bring to trial within a reasonable time: namely:







‘The accused shall be released.’







This appears to mean ‘released from incarceration’. It may also
include release from onerous conditions of bail. Prima facie,
it does not seem to include a permanent quashing of stay of
prosecution.







See also article 5 of the Namibian constitution where it provides
that the Court shall protect the fundamental rights and freedoms ‘in
a manner hereafter prescribed’.







I am not convinced as argued by Mr. Geier, that the provision in
article 25(3) for the protection of a fundamental right or freedom by
interdict overrides the specific provision in article 12(1)(b) that
if a trial does not take place within a reasonable time, the accused
shall be released. The interdict in the form of a mandatory
interdict is then granted to ensure the release, not the permanent
stay or quashing of a criminal charge.”









The words “prima facie, it does
not seem to include a permanent quashing or stay of prosecution”
indicate that the opinion was expressed as an obiter opinion but was
part and parcel of the interpretation of the whole of Art. 12(1)(b).





The application by the accused however,
was rejected because the accused had failed to prove the first leg of
the Art. 12(1)(b), being that the trial did not take place, or cannot
take place within a reasonable time.





The following case was State v
Heidenreich
, a judgment written by Hannah, J, in which Strydom,
J.P., as he then was, concurred.17





In the Heidenreich case, the
presiding magistrate refused a postponement requested by the State
and found that Art. 12(1)(b) had been breached because the trial had
not taken place within a reasonable time. It is not quite clear from
the judgment what were the precise words of the magistrate, but it
was stated in the High Court judgment that the magistrate had said
that “an order should be made releasing him from his trial and such
an order was made”. Thereafter the magistrate had second thoughts
about this order and submitted the record for review expressing the
opinion that she “had no jurisdiction to make the order”. The
case was set down for argument and it was agreed between counsel for
the State and the accused that three points were to be argued being:






  1. Was the magistrate correct in
    holding that the trial of the accused had not taken place within a
    reasonable time as required by article 12(1)(b) of the Constitution?







  1. If so, is the magistrate’s court
    a competent court in terms of Art. 25(2) to take the necessary
    action to enforce or protect the right of an accused to a fair
    trial?







  1. Was it competent for the magistrate
    to order that the accused be released and what is the effect of such
    an order?






The Court found:






  1. The magistrate was wrong in finding
    that the trial of the accused had not taken place within a
    reasonable time.







  1. The magistrate had the necessary
    jurisdiction to enforce the accused’s right to a fair trial, but
    the High Court was the only competent court to act in terms of Art.
    25(2), 25(3) and 25(4).







  1. It was competent for the magistrate
    to make an order for the release of an accused.






The learned judges, with reference to
the judgment in Strowitzki, concluded: “But when regard is
had to the underlying purpose of Art. 12(1)(b) I am of the view that
a broader, more liberal, construction should be given to the word.
Once the main purpose of the sub-article is identified as being not
only to minimise the possibility of lengthy pre-trial incarceration
and to curtail restrictions placed on an accused who is on bail but
also to reduce the inconvenience, social stigma and other pressures
which he is likely to suffer and to advance the prospects of a fair
hearing, then it seems to me that “released” must mean
released from further prosecution for the offence with which he is
charged. It is only by giving the term this wider meaning that the
full purpose of the sub-article is met
. Release from custody or
from onerous conditions of bail only meets part of the purpose of the
sub-article”. (My emphasis added.)





As I understand it the learned judges
did not find that “released” has the meaning of “released from
further prosecution” as one of its meanings, in addition to be
released from incarceration or onerous conditions of bail, but that
“released” “must mean” released from further
prosecution and that that is the meaning of the word as contained in
article 12(1)(b) of the Constitution.





I am not convinced that this finding is
justified by the so-called “main purpose” of the provision –
even though I have no problem with the formulation of the “main
purpose” in the judgment.





When dealing with the element of
“reasonableness” in the phrase “reasonable time”, the Court
inter alia referred to the Canadian decision in R v Askov
where the learned Cary, J., inter alia said:






It can never be forgotten that the victims may be devastated by
criminal acts. They have a special interest and good reason to
expect that criminal trials take place within a reasonable time.
From a wider point of view, it is fair to say that all crime disturbs
the community and that serious crime alarms the community. All
members of the community are thus entitled to see that the justice
system works fairly, efficiently and with reasonable dispatch. The
very reasonable concern and alarm of the community which naturally
arises from acts of crime cannot be assuaged until the trial takes
place. The trial not only resolves the guilt or inconvenience of the
individual, but acts as a reassurance to the community that serious
crimes are investigated and that those implicated are brought to
trial and dealt with according to law.”18









The Namibian High Court and the Supreme
Court have in recent years placed much emphasis on the need to
balance the rights and interests of accused persons with those of the
victims of crime and to consider also the public interest in the
balancing process. In Namibia a Judicial Commission was even
appointed called “The Commission of Inquiry into Legislation for
the More Effective Combating of Crime”. The Commission was
mandated specifically to enquire into and make recommendations
regarding the balancing of the rights of convicted and accused
persons with those of victims and with the public interest.





It must also be borne in mind that a
permanent stay of prosecution would gravely impact on and even
qualify the prerogative of the Prosecutor-General to prosecute,
embodied in Art. 88 of the Namibian Constitution and section 2 of the
Criminal Procedure Act No. 51 of 197719.
It will also similarly affect the periods of prescription for the
institution of crimes provided for in section 18 of the Criminal
Procedure Act. In terms of the latter provision, the right to
institute a prosecution for crimes for which the death sentence could
previously have been imposed, “shall not be barred by the lapse
of time”, whereas the prosecution for other crimes, “lapse only
after the expiration of 20 years from the time when the offence was
committed”,
“unless some other period is expressly provided
by law”. The concern that the permanent stay of the proceedings
based on “the mere passage of time would be the equivalent of
imposing a judicially created limitation period for a criminal
offence” was also expressed in a decision of the Supreme Court of
Canada.20





One can therefore imagine why the
sanction or remedy of permanent release from prosecution, or
permanent stay of prosecution, being a sanction or remedy which may
adversely affect the interests of the victims of crime and the public
interest, as well as that of the accused, should not be imposed in
other than the most exceptional and extreme cases of unreasonable
delay. No wonder then that in those Namibian cases where a permanent
stay of prosecution has been applied for, not one has been successful
so far. In S v Uahanga & Others,21
however, the accused was acquitted on the authority of the
Heidenreich decision, but that decision can be distinguished
because the order was made after the accused had pleaded “Not
Guilty”.





In South Africa, where the Court has a
discretion to impose and/or to provide necessary and appropriate
relief, the Constitutional Court has stated in regard to an
application for the permanent stay of the prosecution:






“The relief the applicant seeks is radical, both philosophically
and socially politically. Barring the prosecution before the trial
begins and consequently without any opportunity to ascertain the real
effect of the delay on the outcome of the case is far-reaching.
Indeed it prevents the prosecution from presenting society’s
complaint against an alleged transgression against society’s rule
of conduct that will seldom be warranted in the absence of
significant prejudice to the accused…”










“Ordinarily, and particularly, where the prejudice alleged is not
trial related, there is a range of “appropriate” remedies less
radical than barring the prosecution. These would include a mandamus
requiring the prosecution to commence the case, a refusal to grant
the prosecution a remand, or damages after an acquittal arising out
of the prejudice suffered by the accused. A bar is likely to be
available only in a narrow range of circumstances, for example
where it is established that the accused has probably suffered
irreparable trial prejudice as a result of the delay
.”22








In the following decision of the South African Constitutional
Court, namely Wild and An v Hoffert & Ors23,
where Kriegler, J, writing the judgment for the Court as in
Sanderson, reaffirmed the test in Sanderson, and added:






“The appellant do not allege, nor is there any suggestion of trial
prejudice here. Consequently their claim for a stay of the
prosecution must fail unless there are circumstances rendering the
case so extraordinary as to make the otherwise inappropriate remedy
of a stay, nevertheless appropriate.”














It has been argued that in interpreting art. 12(1)(b) the Court
must apply a broad, liberal and purposive approach.





In this regard it is appropriate to repeat what was said in the
majority judgment of this Court in Minister of the Interior v
Frank and Another
:






“In my respectful view, the starting point in interpreting and
applying a constitution, and establishing the meaning, content and
ambit of a particular fundamental right, or freedom, must be sought
in the words used and their plain meaning. This principle is
endorsed by Seervai in his authoritative work ‘Constitutional
Law of India
’ where he quotes with approval from the Central
Provinces case
(1939) FCR 18 at 38:







‘…for in the last analysis the decision must depend upon the
words of the Constitution which the Court is interpreting and since
no two constitutions are in identical terms, it is extremely unsafe
to assume that a decision on one of them can be applied without
qualification to another. This may be so even when the words or
expressions are the same in both cases, for a word or phrase may take
a colour from its content and bear different senses altogether.’







But I am mindful of the dictum of this Court in the
Namunjepo-decision where the learned Chief Justice Strydom
said:







‘A court interpreting a Constitution will give such words,
especially the words expressing fundamental rights and freedoms, the
widest possible meaning so as to protect the greatest number of
rights…’







The ‘widest possible meaning’ however, means no more than what
Kentridge, J.A. said in the case of Attorney-General v Moagi.







He declared: ‘… a Constitution such as the Constitution of
Botswana, embodying fundamental rights, should as far as its language
permits be given a broad construction…’.







And as Friedman, J. comments in Nyamkazi v President of
Bophuthatswana
, ‘this is in my view the golden
mean between the two approaches’ meaning the approaches of the
‘positivist’ and ‘libertarian’ schools. (My emphasis added.)







I am also mindful of the many Namibian decisions where the basic
approach in interpreting a constitution has been expressed in poetic
and stirring language. So e.g. it was said in Government of the
Republic of Namibia v Cultura 2000,
:







‘It must be broadly, liberally and purposively
interpreted so as to avoid the 'austerity of tabulated
legalism' and so as to enable it to continue to play a creative and
dynamic role in the expression and the achievement of the ideals and
aspirations of the nation, in the articulation of the values bonding
its people and in disciplining its Government.’



(My emphasis added.)











But as pointed out by Seervai, citing what was said by Gwyer, C.J.,







‘… a broad and liberal spirit should inspire those whose duty
it is to interpret the constitution, but I do not imply by this that
they are free to stretch and pervert the language of the enactment in
the interests of any legal or constitutional theory, or even for the
purposes of supplying omissions or correcting supposed errors
. A
Federal Court may rightly reflect that a Constitution of
Government is a living and organic thing, which of all instruments
has the greatest claim to be construed ut res magis valeat quam
pereat.



(My emphasis added.)







This dictum was quoted by this Court, apparently with approval, in
the decision of Minister of Defence, Namibia v Mwandingi.







In the aforesaid decision, this Court also relied inter alia
on a dictum by Lord Wilberforce in Minster of Home Affairs &
An v Fisher & An
, wherein the learned Law Lord had said:







‘A constitution is a legal instrument giving rise, amongst other
things, to individual rights capable of enforcement in a Court of
Law. Respect must be paid to the language which has been used and
to the traditions and usages which have given meaning to that
language
. It is quite consistent with this, and with the
recognition of the character and origin of the instrument, and to be
guided by giving full recognition and effect to those fundamental
rights and freedoms with a statement of which the constitution
commences…’ (My emphasis added.)







Kentridge, A.J., who wrote the unanimous judgment of the South
African Constitutional Court in the State v Zuma, quoted with
approval the following passage from a judgment of Dickson, J., (later
Chief Justice of Canada) in the decision R v Big M. Drug Mart Ltd:







‘The meaning of a right of freedom guaranteed by the Charter was to
be ascertained by an analysis of the purpose of such a guarantee; it
was to be understood, in other words, in the light of the interests
it was meant to protect. In my view this analysis is to be
undertaken, and the purpose of the rights or freedom in question is
to be sought by reference to the character and larger objects of the
charter itself, to the language chosen to articulate the specific
right or freedom, to the historical origins of the concept enshrined,
and where applicable, to the meaning and purpose of the other
specific rights and freedoms with which it is associated within the
text of the Charter. The interpretation should be … a generous
rather than legalistic one, aimed at fulfilling the purpose of a
guarantee and the securing for individuals the full benefit of the
Charter's protection.’







Kentridge, A.J., also pointed out in S v Zuma & Ors that
‘it cannot be too strongly stressed that the Constitution does not
mean whatever we might wish it to mean…’







In the same decision, Kentridge said:







‘Both Lord Wilberforce and Dickson, J., later Chief Justice, of
Canada, had emphasised that regard must be had to the legal
history, traditions and usages of the country concerned, if the
purposes of its constitution must be fully understood. This must be
right
.’



(My emphasis added.)







The dictum was again approved by the Constitutional Court in State
v Makwanyane and Another
although Chaskalson, P., in his judgment
added:







‘Without seeking in any way to qualify anything that was said in
the Zuma's case, I need say no more in this judgment than that
s 11(2) of the Constitution must not be construed in isolation, but
in its context, which includes the history and background to the
adoption of the Constitution, other provision of the Constitution
itself and, in particular, the provisions of chap 3 of which it is
part. It must also be construed in a way which secures for
'individuals the full measure' of its protection.’







It was also pointed out in the latter decision that background
material, such as the reports of technical committees which advised
the Multi-party negotiating process, could provide a context for the
interpretation of the Constitution…







It follows from the above that when a Court interprets and applies a
constitution and adheres to the principles and guidelines
above-stated, a ‘purposive’ interpretation also requires that a
Court has regard to ‘the legal history, traditions and usages of
the country concerned, if the purposes of its constitution must be
fully understood’.







To sum up: The guideline that a constitution must be interpreted
‘broadly, liberally and purposively’, is no license for
constitutional flights of fancy. It is anchored in the provisions of
the Namibian Constitution, the language of its provisions, the
reality of its legal history, and the traditions, usages norms,
values and ideals of the Namibian people. The Namibian reality is
that these traditions, usages, norms, values and ideals are not
always ‘liberal’ and may be ‘conservative’ or a mixture of
the two. But whether or not they are ‘liberal’, ‘conservative’
or a ‘mixture of the two’, does not detract from the need to
bring this reality into the equation when interpreting and applying
the Namibian Constitution”.24








When interpreting Art. 12(1)(b) of the Namibian Constitution, one
should also keep in mind that there has never been a principle in
South African and Namibian law making a permanent stay of prosecution
a mandatory remedy for any breach of any of the principles of a fair
trial. So e.g. in South Africa, in the decision of Klein v
Attorney-General, Witwatersrand Local Division
, it was stated:






“There has however never been a principle that a violation of any
of the specific rights encompassed by the right to a fair trial would
automatically preclude the trial. Such a rigid principle would
operate to the disadvantage of law enforcement and the consequent
prejudice of the society which the law and the Constitution is
intended to serve…”









In the light of the foregoing, it seems extremely unlikely that
the Constituent Assembly of Namibia, could ever have intended to
prescribe to the Courts as a mandatory remedy, and as the one and
only remedy, a permanent stay of prosecution.





None of counsel who appeared in this appeal and the one of
Malama-Kean referred to supra, have been able to point
to any court decision, or legal dictionary, where the word “release”
was used to provide for a permanent stay of the prosecution in a
criminal case or a permanent release from prosecution. The nearest
one counsel could get was “The Oxford Companion to Law”,
by David M. Walker, MA, PL D, LLD, FBA, One of Her Majesty’s
Counsel in Scottland, of the Middle Temple, Barrister, Regius
Professor of Law in the University of Glasgow.





In this dictionary, the meaning of the word release is given as:
“A discharge or renunciation of a claim or right of action.
Also at common law the conveyance of a larger estate, or a remainder
or reversion, to a party already in possession”. (My emphasis
added.) A “claim or right of action” clearly refers to civil law
and procedure, not criminal law.





It is significant that even an academic, professor of law and
Barrister with such credentials could not find an application for the
word “release” in criminal law and procedure. As far as
dictionary meanings are concerned contained in non-legal
dictionaries, reference can be made to the “Oxford Advanced
Learners Dictionary of Current English” by A S Hornsby where the
following meanings are given with a measure of relevance to the word
in Art. 12(1)(b): “To allow to go; to set free; release a man
from prison on order for his release from prison; given up or
surrender (a right, debt property) to another”.





In Heidenreich the Court did however refer to the reference
by Mr. Small, counsel for the State, to various dictionary meanings
of the term “released” showing that the word “released” can
have a variety of meanings, including released from detention or
relieved from onerous conditions of bail but concluded as I have
shown supra, on the ground of the need for a broader, more
liberal construction, that “a permanent release from prosecution”,
must be the true and exclusive meaning to be given to the words.
Counsel as well as the Court in that case, appears to have given
insufficient weight to the fact that in the most relevant legislation
the Criminal Procedure Act, the word “released” is only used in
the sense of released from custody, released on bail, on own
recognizances etc.





Section 39(3) of the Criminal Procedure Act provides:






“A person arrested shall be in lawful custody until lawfully
discharged or released”. Section 50(1) further deals with
the case of a person arrested, whether with or without warrant who,
if not released by reason that no charge is brought against him
…” Section 56(2) provides: “If an accused is in custody, the
effect of a written notice handed to him under subsection (1) shall
be
that he be released forthwith from custody”. In the South
African final Constitution of 1996, the terms “released” is used
in art. 35(1)(f) in the sense of “release from detention”.









Section 58 provides:






“The effect of bail granted in terms of the succeeding provisions
is that an accused who is in custody shall be released from
custody upon payment of or the furnishing of a guarantee to pay, the
sum of money determined for his bail, and that he shall appear at the
place and on the date and at the time appointed for his trial or to
which the proceedings relating to the offence in respect of which the
accused is released on bail are adjourned, and that the release
shall, unless sooner terminated under the said provisions, endure
until a verdict is given by a court in respect of the charge to which
the offence in question relates, or, where sentence is not imposed
forthwith after verdict and the court in question extends bail, until
sentence is imposed.” (My emphasis added.)









The term “released” is also used in regard to bail in section
59, 60, 61, 66(1), 71 and 179. Section 72 deals with release
on warning instead of bail. Section 185 deals with the detention of
witnesses and the release from detention of such witnesses who had
been detained to secure their safety.





Nowhere in the Act is the term “released” used in any other
sense than released from detention.





The Prison Act of 1995 also uses the term in sections 5, 61, 62,
64, 66, 67, 69 and 71, in regard to the release of prisoners from
imprisonment.





The notorious section 103 ter (4) and (5) of the Defence
Act as it stood before Namibian independence, serves as a precedent
for the authors of legislation should they wish to bar a prosecution
whether before or after plea. In the case of a bar before plea,
these provisions provided that the State President could authorize
the Minister of Defence to issue a certificate “directing that the
proceedings shall not be continued”. The task for the Court then
was to determine whether there was such a certificate. Once it
determines that there was such a certificate, then “the proceedings
shall be deemed to be void”.25
These provisions further serve to indicate how explicit the language
must be to effect a permanent bar to prosecution.





Furthermore, the Legislature in enacting the Criminal Procedure
Act, has used the express term “acquit” in section 6(b) when it
intended to provide for that effect in cases where the State stops
the prosecution after plea. If an acquittal or a permanent stay of
prosecution or discharge from prosecution as the exclusive remedy was
intended, why not say so, considering the fact that it is an
extraordinary remedy with wide-ranging implications. This need to
use the terms “shall be acquitted” or “the prosecution shall be
permanently stayed” or “the accused” shall be permanently
discharged from prosecution or similar words to the same effect,
becomes even more apparent if sub-article (2) of article 12 is
considered. Sub-article (2) provides as follows: “No persons
shall be tried, convicted or punished again for
any criminal offence for which they have already been convicted or
acquitted according to law: provided that nothing in this
sub-article shall be construed as changing the provisions of the
common law defence of “previous acquittal” and “previous
conviction”. (My emphasis added.)





Sub-article (2) must also be read in conjunction with the
provisions of section 106 of the Criminal Procedure Act 51 of 1977
which was in existence at the time the Namibian Constitution was
enacted and is still valid and applicable in accordance with Art.
138(2)(a) of the Namibian Constitution. It will remain in force
until repealed by an Act of Parliament or declared unconstitutional
by the Court. There has been no repeal by Parliament and no
declaration by any Court that it is unconstitutional. I can also see
no reason at all for declaring the said section 106 unconstitutional.





The significance of section 106 is that it provides in sub-section
1(c) and (d):






“When a accused pleads to a charge he may plead –







(c) that he has already been convicted of the offence with
which he is charged; or







(d) that he has already been acquitted of the offence with
which he is charged;







(e) that he has received a free pardon under section 327(6) from the
State President for the offence charged; or















    1. that he
      has been discharged
      under the provisions of section 204 from
      prosecution for the offence charged.”







(My
emphasis added.)








Section 204 provides for a person who may be charged but is used
as a state witness and who, should the Court find at the end of the
trial that he has answered all questions frankly and honestly, “such
witness shall, subject to the provision of subsection (3), be
discharged from prosecution
”. Subsection (3) deals with a case
where the witness testifies at a preparatory examination and after
having been given the immunity, does not testify frankly or honestly
at a subsequent trial.





In all these cases the special pleas are tendered before any plea
to the merits and exhaust the pleas under statute where an accused
can be permanently released from prosecution.





The accused can also demand, in accordance with section 108 that
the issues raised by the plea, other than a plea of guilty, be tried.





The language used to provide for a discharge from prosecution or a
permanent stay of prosecution is significant. In subsection 1(d) of
section 106 a permanent stay is obtainable provided an accused has
previously been “acquitted”; in the case of subsection 106(1)(e)
read with section 204(2), the remedy provided is if the accused in
terms of 204(2)(g), has been “discharged from prosecution”. The
words “discharge from prosecution” are not used in any other part
of the Criminal Procedure Act.





It is also significant that in the USA and Canada where a
so-called dismissal with prejudice is the remedy, it is equivalent to
a permanent stay of prosecution and/or an acquittal, the relief
applied for is the “dismissal of indictment” or “dismissal of
the charge” and the focus is not on the person of the accused but
on such indictment or charge.26
In Namibia, in art. 12(1)(b) the focus is on the person of the
accused and provides that the “accused shall be released”, not
the “indictment” or “charge” shall be dismissed.





In the provisions of the Criminal Procedure Act, and Prisons Act
where released from detention is intended, the focus is similarly on
the accused or detained person, but where the order contemplates a
permanent stay of prosecution in terms of the Criminal Procedure Act
the terms “discharge from prosecution” or “acquittal” or
“acquitted” are used respectively.





The Court in Heidenreich held that Art. 25 “is
concerned with specific and independent claims made by aggrieved
persons that a fundamental right or freedom guaranteed by the
Constitution has been infringed and whilst such claims must be made
in proceedings before the High Court
, it does not mean that a
magistrate’s court has no jurisdiction to ensure the observance of
certain fundamental rights guaranteed by the Constitution during the
course of proceedings which take place before it…” (My emphasis
added.)





I have difficulty in understanding the distinction apparently made
between claims under Art. 25 and claims under Art. 12 and that claims
under Art. 25 “are specific and independent claims” and that such
claims “must be made in proceedings before the High Court” and
that a magistrate’s court will not have jurisdiction to hear such
claims, but will have jurisdiction to hear complaints about the
“observance of certain fundamental rights … during the course of
proceedings which take place before it…”. The Court went on to
indicate that claims under Art. 12(1)(b) would be justiciable by the
magistrate’s court in terms of art. 5 if raised in the course of
criminal proceedings before it. In view thereof that the Court also
found that the remedy provided for in art. 12(1)(b) is a permanent
stay of prosecution, it follows that it also found, by implication,
that the magistrate’s court has jurisdiction by virtue of article 5
read with 12(1)(b), to order a permanent stay of prosecution.





In the subsequent decision of Van As, the Court held that:
“If the effect of the order made by the magistrate to release an
accused is to grant a permanent stay of prosecution, the magistrate
would be exceeding his jurisdiction. If the magistrate has the power
to release an accused person by virtue of art. 5, by necessity
“release” does not have the extended meaning given to it in the
Heidenreich’s case. It seems that the learned judges in Van
As
based their view on the fact that a permanent stay of
prosecution amount to an interdict and that the magistrate’s court
has no jurisdiction to grant such an interdict in terms of the
Magistrate’s Court Act.





It follows that the Court in Van As correctly argued that
if the words “shall be released” mean that the Court shall grant
a permanent stay of prosecution, then a magistrate’s court will not
have the jurisdiction to grant such an order. In my respectful view,
the Court in Van As came to the correct conclusion in this regard.





This is so because art. 5 clearly provides that the Court and
others, having the duty to uphold and protect the fundamental rights
and freedoms, provided expressly that such rights and freedoms “shall
be enforceable by the Courts in the manner hereinafter
prescribed
”. (My emphasis added.)





The question must therefore be further examined what is the manner
hereinafter prescribed?





The regime of enforcement is contained in art. 25(3) of the
Constitution, read with articles 80(2), 80(3), 12 read with section 2
of the High Court Act 16 of 1990, the Magistrate’s Court Act 32 of
1944, Chapter (VI) – Civil Jurisdiction and Chapter XII –
Criminal Jurisdiction and the Criminal Procedure Act No. 51 of 1977.





Art. 25(2) introduces the concept of a so-called “competent”
court which in terms of sub-article (3), has wide powers in regard to
providing remedies for the breach of any fundamental human right or
freedom but these powers are again “subject to the provisions of
the Constitution” which obviously also mean that it will be
“subject” to art. 12(1)(b) which provides a specific remedy of
“shall be released” should a trial not take place within a
reasonable time.





Art. 80(2) provides that the High Court shall have original
jurisdiction
to hear and adjudicate upon all civil disputes and
criminal prosecutions, including cases which involve, the
interpretation, implementation and upholding of this Constitution and
the fundamental rights and freedoms guaranteed thereunder…





Art. 83, in contrast provides: “Lower Courts shall be
established by Act of Parliament and shall have the jurisdiction
and adopt the procedures prescribed by the Act and the regulations
made thereunder…”
(My emphasis added.)





It is common cause that neither the Magistrate’s Court Act, its
abovestated Chapters on jurisdiction, nor the Criminal Procedure Act
provides for a jurisdiction and /or procedures in terms
of which an interdict can be granted in a criminal case.





It is consequently beyond doubt that the only so-called “competent
Court” for the purposes of article 25 is the High Court and as
such, that Court has wide discretionary powers to provide remedies
for breeches of fundamental rights and freedoms, including interdicts
and damages and obviously in the case of interdicts, irrespective of
whether the order is made in a civil proceeding or criminal
proceeding. The said “competent court” can consequently order a
permanent stay of a criminal prosecution. On the other hand, a
magistrate’s court has no jurisdiction to do so as the law stands
at the moment. Even if art. 12(1)(b) envisages a permanent interdict
as its only remedy, alternatively, one of the envisaged remedies for
the trial as envisaged in art. 12(1)(a) not taking place within a
reasonable time, that fact, read with art. 5, does not allow a
magistrate’s court to order a permanent stay of prosecution prior
to pleading to the merits by an accused.





Once the accused has pleaded to the merits, the Prosecutor-General
is no longer dominus litus and the magistrate’s court
could in an appropriate case, where the trial has not taken place
within a reasonable time, refuse further postponements and acquit the
accused. This was done in the case of State v Uahanga &
Others
, referred to infra.





In my respectful view, the Legislature should seriously and
urgently consider an amendment to the Magistrate’s Court Act and
the Criminal Procedure Act, extending the jurisdiction of
magistrate’s courts, particularly courts with the status of
Regional Courts, to be “competent” courts, for the purposes of
art. 25(2) or at any event clothe such courts with the necessary
jurisdiction to enable such courts to order a permanent stay of
prosecution prior to pleadings in appropriate cases.





The fact that a magistrate’s court does not have the
jurisdiction to apply the remedies provided for in art. 25, is not an
insuperable obstacle to the granting of the remedies provided for in
art. 25. Should an aggrieved accused insist on a permanent stay of
prosecution, a postponement of the trial before the magistrate’s
court can be requested to enable the accused to apply to the High
Court as the “competent” Court, for such a remedy.





The Namibian High Court decision following on State v
Heidenreich
was S v Uahanga & Others, referred to
supra. Smuts, A.J., wrote this judgment and Mtambanengwe, J,
concurred.





This was a case where a prosecutor, after some delay on the side
of the State to proceed with the prosecution, requested a
postponement. The magistrate apparently did not deal with the
application for postponement, but acquitted the accused in view
thereof that he had already pleaded “not guilty” on a previous
occasion. This time the State appealed. The appeal was dismissed on
the authority of State v Heidenreich. The Court did not voice
any criticism and did not raise any new point pertaining to the
problem.





The next decision of the High Court was that in Van As &
Another v Prosecutor-General of Namibia
, a full bench decision of
three judges where the judgment was written by Levy, A.J.27





The first point made by the Court in this judgment with reference
to the decision in S v Heidenreich is that that decision was
an obiter dictum in so far as it held that the words “shall
be released” must mean that the prosecution is permanently stayed.
The contention that the dictum in Heidenreich relating
to the meaning and effect of the words “shall be released” in
Art. 12(1)(b) was an obiter dictum is probably correct because
once it was found that it was not proved that the trial did not take
place within a reasonable time, it was not necessary to decide the
question of the meaning and effect of the words “shall be
released”.





In the following case, that of Malama-Kean, it was argued
that the decision in Van As relating to the words “shall be
released” was obiter. It is not necessary for this Court to
further elaborate on whether or not the aforesaid decisions were
obiter in regard to the Court’s interpretation of the words “shall
be released”, because this Court will not be bound by those
decisions, whether or not they were obiter dicta. This Court
will in any event consider all those decisions and decide to what
extent those precedents have persuasive value. It is apposite
however, to point out at this stage that it is not always easy to
draw the line between what is a binding precedent and what is obiter.
A rigid approach to avoid at all costs overstepping the line is not
necessarily in the interests of justice. Very often judicial
guidelines are appropriate for guidance in regard to recurring legal
problems in a developing legal system, particularly in a new
developing constitutional dispensation. Obiter dicta may be
justified, particularly in those cases where the points were properly
raised and argued before the Court. It is also undeniable that our
case law has been enriched by many decisions, which amounted to
obiter dicta.





In Van As, the Court in my respectful view, correctly
accepted that the ratio of Heidenreich on the issue of the
interpretation of the words “shall be released”, was that the
word must mean and therefore means that the mandated remedy is “a
permanent stay of prosecution”.





The Court in Van As disagreed with this conclusion in
Heidenreich and followed S v Strowitzki and Another,
which was the first decision on the issue, even though the Strowitzki
dictum was probably obiter in this regard.





The reasons for the Van As decision were set out as
follows:






"With great respect to the learned Judges who heard
Heidenreich's case, the effect of art 12(1)(b) was never
intended to be more than release 'from arrest or from onerous
conditions of bail' as decided by O'Linn J in S v Strowitzki, 1995
(1) SACR 414 (Nm), 1995 (1) BCLR 12 (Nm).







The learned Judges in Heidenreich's case gave to the word
'release' a meaning similar to 'acquit'. At 239 I - J, the Court
said:



'The
general approach when construing constitutional provisions is that
the provisions are to be ''broadly, liberally and purposively''
interpreted: Government of the Republic of Namibia v Cultura 2000
and Another
1994 (1) SA 407 (NmS) at 418F, and if this canon of
construction is to be relied upon it is as well to identify expressly
the underlying purpose of the constitutional provision under
consideration.'






With due respect, this 'canon of construction' does not permit a
Court to give a word the meaning it does not have. In Minister of
Defence v Mwandinghi
1992 (2) SA 355 (NmS), 1993 NR 63 (SC) at
69I - J (NR) a Full Bench in a joint decision by Berker CJ, Mahomed
AJA and Dumbutshena AJA, said the following:






'H
M Seervai, citing what was said by Gwyer CJ, remarked, in The
Constitutional Law of India
3rd ed vol 1 at 68, that




''…a broad and liberal spirit should inspire those whose duty it is
to interpret the Constitution; but I do not imply by this that they
are free to stretch or pervert the language of the enactment in the
interests of any legal or constitutional theory, or even for the
purposes of supplying omissions or correcting supposed errors.'' '







It is true that a Court must start with the interpretation of any
written document whether it be a Constitution, a statute, a contract
or a will by giving the words therein contained their ordinary
literal meaning. The Court must ascertain the intention of the
legislator or authors of document concerned and there is no reason to
believe that the framers of a Constitution will not use words in
their ordinary and literal sense to express that intention. As was
said by Innes CJ in Venter v R 1907 TS 910 at 913:






'By
far the most important rule to guide courts in arriving at that
intention is to take the language of the instrument, or of the
relevant portion of the instrument, as a whole; and, when the words
are clear and unambiguous, to place upon them their grammatical
construction and give them their ordinary effect.'






This has been followed in Namibia on countless occasions. Where a
particular word in its ordinary sense has more than one meaning, an
ambiguity can arise and only then does one have recourse to other
methods of ascertaining the intention of the authors concerned as to
what the meaning was which the authors intended the word should have.







One need not consult a dictionary for the meaning of the word
'release'. It is frequently used by members of the public and by
lawyers in Courts and in documents. In the instant case, the word is
used in art 12 which deals with a fair trial. In the same article the
framers of the Constitution used the word 'acquit' and dealt with the
effect thereof, namely having been acquitted an accused could not be
charged again.







These two concepts namely 'release, because the trial has not taken
place within a reasonable time' and 'acquit' where the trial has been
completed appear in the same article. It is therefore logical to
contrast the concepts and not to give them the same meaning.







It is true the framers of the Constitution did not recite what the
effect of a 'release' would be. This is not a casus omissus
as it was not necessary to elaborate on the normal consequences of a
person who is being prosecuted, being released. A person who is
prosecuted is arrested in order to be prosecuted but may be on bail.
When such person is released from arrest and bail it does not
terminate the prosecution. One can attend a trial on a 'warning' from
the Court and one can be on one's own recognisance and still be
prosecuted.






In R v Stevens 1969 (2) SA 572 (RA) at 577H, Beadle CJ said:






'…
when the meaning of a section is plain …, the mere fact that there
may be a casus omissus in the section does not seem to need to
justify a departure from its plain meaning and this is more
especially so when that plain meaning appears to accord with the
intention of the Legislature.'






In any event there is no need to interpret the sub-article as having
a 'casus omissus'. In Dhanabakium v Subramanian and Another
1943 AD 160 at 170 - 1, Centlivres JA said:






'The
conclusion at which I have arrived avoids what would otherwise be a
casus omissus in s 70 and it seems to me that if a reasonable
construction of an Act does not lead to a casus omissus while
another construction does lead to that result, the construction which
should be applied is the one which does not lead to that result.'









I conclude this aspect by once again referring to the Full Bench
judgment in Mwandinghi's case quoted above, where the learned
Judges referred with approval to the remarks of Gwyer CJ which
included a warning that in the interpretation of Constitutions one
should not 'supply omissions' even when applying that 'broad and
liberal spirit' for interpreting Constitutions.







To give the word 'release' its ordinary meaning (to release from
arrest or bail) fits in with the scheme of the Constitution and with
the existing common law and the Criminal Procedure Act (Act 51 of
1977) applicable before independence in Namibia and since
independence by virtue of art 140 of the Constitution.”









The Court concluded its argument as follows: “Accordingly, I am
satisfied that should a person be ‘released’ in terms of article
12(1)(b), such person would not thereby be granted a permanent stay
of prosecution”.





The next decision of the High Court, is now also on appeal before
this Court, namely that of Margaret Malama-Kean v The Magistrate
for the District of Oshakati & The Prosecutor-General
,
referred to supra.28





The judgment was written by Hannah, J., concurred in by Maritz,
J., and Mainga, J. Hannah, J., was also as indicated earlier, the
judge who wrote the judgment in the Heidenreich case, referred
to supra.





I will only deal in this judgment with the part of the High Court
judgment in Malama-Kean which relates to the interpretation
and application of the words “shall be released” in art. 12(1)(b)
of the Constitution because all the other aspects relating to the
Malama-Kean judgment, will be dealt with in the Malama-Kean
appeal.





The High Court in Malama-Kean not only differed from the
judgment in State v Strowitzki, and Van As & Another v
The State
, supra, but also the judgment in State v
Heidenreich
.





In Malama-Kean it was found that the words “shall be released”
allows “not only release from custody and release from bail or
conditions attached to bail, but it can also constitute release from
further prosecution”.





After carefully considering the decisions in S v Strowitzki,
Heidenreich, Van As and Malama-Kean, I have
reached the conclusion that all of them were wrongly decided in part
in regard to the correct interpretation of the words “shall be
released” in art. 12(1)(b).





It seems to me that counsel for appellant who argued the
Malama-Kean appeal before us, was correct in his contention that
“released” in art. 12(1)(b) read with art. 12(1)(d) means
released from the trial as envisaged in 12(1)(a)”. The
Court a quo in Malama-Kean came to its conclusion on
the three possible forms of the order, without first concluding that
the words “shall be released” were intended in the first place to
mean – “released from the trial as envisaged in 12(1)(a)”. Mr.
Heathcote’s contention also makes sense because such an
interpretation will also extend the remedy contemplated by art.
12(1)(b) to accused persons who are not in detention, who
would not have had a remedy under art. 12(1)(b) if the term
“released” in 12(1)(b) is restricted to release from detention.





Notwithstanding various pointers to the contrary in my analysis
supra, this construction appears to me to be the most logical
solution to the dilemma caused by the vague language of art. 12(1)(b)
and the interpretation which best reflects the probable intention of
the authors of the Namibian Constitution. It is also in line with a
broad, liberal and purposive approach.





The decisive consideration for the aforesaid construction however,
is that the principle that those criminal courts, which are
“competent” courts with the necessary jurisdiction, should have
in their armoury of sanctions, the power and the responsibility in an
appropriate case of unreasonable delay, to order a permanent stay of
prosecution as at least one of its discretionary powers. This is in
accordance with principles and procedures in most of the advanced
criminal justice systems in democratic countries. It must be assumed
that the framers of the Namibian Constitution also had this objective
in mind.





The question however still remains what is the full significance
of an order – “shall be released from the trial”.





It is clear that the remedy provided in art. 12(1)(b) – “shall
be released”, is couched in mandatory and peremptory terms.
Nevertheless it does not seem to me that only one form of release
from the trial would meet the peremptory requirement.





The following forms of release from the trial, will in my view all
be legitimate forms meeting the peremptory requirement:





(i) A release from
the trial prior to a plea on the merits, which does not have the
effect of a permanent stay of the prosecution and is broadly
tantamount to a withdrawal of the charges by the State before the
accused had pleaded.





This form of release from the trial will encompass:






  1. Unconditional release from detention if the accused is still
    in detention when the order is made for his/her release;







  1. Release from the conditions of bail if the accused had
    already been released on bail prior to making the order;







  1. Release from any obligation to stand trial on a specified
    charge on a specified date and time if the accused had previously
    been summoned or warned to stand trial on a specified, charge, date
    and time.






(ii) An acquittal after plea on the
merits;





(iii) A permanent
stay of prosecution, either before or subsequent to a plea on the
merits.





Which form the order of “release from the trial” will take,
will depend not only on the degree of prejudice caused by the failure
of the trial to take place within a reasonable time, but also by the
jurisdiction of the Court considering the issue and making the order.





So e.g. as I have indicated in the discussion supra, a
magistrate’s court would not be able, as the law stands at the
moment, to order a permanent stay of prosecution before plea and
remedy no. (iii) supra would thus fall outside the options
available before the magistrate’s court.





The High Court on the other hand, will be competent to grant all
the remedies enumerated under (i), (ii) and (iii) and as far as (iii)
is concerned, it will act in terms of its powers as a “competent”
court under art. 25(2) read with article 5 and 12(1)(a) and 12(1)(b)
of the Constitution.





It is necessary to reiterate that the remedy of a permanent stay
of prosecution will only be granted if the applicant has proved that
the trial has not taken place within a reasonable time and that there
is irreparable trial prejudice as a result or other exceptional
circumstances justifying such a remedy.





Courts making an order under 12(1)(b) must not merely state that
the accused “shall be released” but use one of the forms of order
enumerated in (i), (ii) or (iii), supra, so that the ambit of the
order will be clearly understood by all concerned.





SECTION C:


THE APPEAL IN REGARD TO THE REFUSAL OF A PERMANENT STAY OF
PROSECUTION


It was conceded by counsel on both sides that the only ground
given by the learned presiding judge in the Court a quo for
rejecting the application was that it was not urgent.





It was also common cause that the Court a quo did not go
into the merits of the application at all. Mr. Du Toit made the
following two submissions:





(1) “The trial
Court should have found … that the appellant was entitled to
approach the Court by notice of motion for a permanent stay of his
prosecution; it should also have held that there is no reason why
such an application cannot be considered in accordance with the
normal Rules of Court applicable to an application by way of notice
of motion.”





(2) “The trial
Court should have held that there is every reason why the application
for a stay of prosecution could not wait until the criminal trial was
finalized and that in fact such an approach would defeat the very
purpose of the application.”





Mr. Small in his argument set out the various stages of the
proceedings before the application was actually launched. As I
understand it, the crux of Mr. Small’s argument was that the
requirements for a party relying on urgency were not met,
particularly that the grounds of urgency on which the applicant
relied were not properly set out in the application and that the
urgency, if any, was self-induced in that the applicant used various
delaying tactics and did not act in good faith. All this may have
some substance, but unfortunately such reasons do not appear from the
judgment as the ratio of the judge a quo.





In view of my conclusion on the merits of the application, it is
not necessary to deal with this aspect in detail, particularly in
view of the fact that the judgment is already extensive.





Suffice to say that an application for a permanent stay of
prosecution prior to plea, will naturally be launched at some stage
before plea. In view of the fact that the purpose of such an
application is obviously to prevent the trial from taking place at
all, such an application would normally be intrinsically urgent and a
Court should not regard it as fatal to the application merely because
the grounds of urgency are not spelled out with the same precision
and particularity as in cases where only the applicant can say why
the application is urgent.





In regard to the notice of motion procedure, it seems to me that a
formalistic approach does not serve the interests of justice.





This Court has recently, in the case of The Government of the
Republic of Namibia & Ors. v G.K. Mwilima & Ors.
, dealt
with the issue of whether a notice of motion procedure was
permissible where the subject matter was in substance related to
relief required for an alleged breach of the requirements of a fair
trial, which was in substance related to the pending criminal trial.





The Court held that the notice of motion procedure was not only
permissible in that case but actually preferable, particularly in
order to give all the parties involved a proper opportunity to state
their case.29
Although the present case is not identical, the basic approach in
Mwilima is applicable, mutatis mutandis.





In my respectful view, the Court a quo erred in rejecting
the application on the sole ground that the application was not
urgent. However, that is not the end of the matter.





The fact that the Court did not go into the merits, places this
Court in a dilemma as to the course of action to follow. In the
usual type of case where the merits of a matter were not decided
because of a point in limine, this Court would refer
the matter back to the Court a quo to decide the merits where
the point in limine was wrongly decided.





In the present case however, where so much time has already been
lost, it would not be in the interests of justice of delay the final
decision on the issues any longer. The merits of the application can
be decided on the record, not only of the application but of the
trial which followed and which are before this Court, even though the
Court of first instance did not decide it. It seems to me therefore
that a robust approach is necessary to reach finality in the matter
and that this Court could and should decide the issue on the merits.





The grounds relied on for the application are set out in Section
A, supra. These grounds refer on the one hand to a number of
alleged irregularities by police officers who investigated the case
against the accused and others, the complainant’s conduct, the
conduct of advocates and attorneys, who acted on behalf of the
Prosecutor-General. On the other hand, reliance is placed on the
alleged breach of the fundamental right to a trial within a
reasonable time.





The applicant/appellant relies for a remedy on art. 5 read with
25(2) and 25(3) of the Namibian Constitution as well as art.
12(1)(b), providing for a trial within a reasonable time failing
which, the mandatory sanction of release.





I have dealt extensively with these provisions of the Constitution
in Section C of this judgment infra and refer to that section
in so far as it is necessary for this part of the judgment.





The first question which arises on the merits is whether the
applicant/appellant can be said to have proved on a balance of
probabilities the breach of any fundamental right and if so, the
appropriate remedy.





The allegations of fact made about irregularities are vague and
unimpressive. When counsel for the appellant was asked to demonstrate
any trial related prejudice from the record of the trial, he was
completely unable to do so and conceded as such. No trial related
prejudice is apparent or discernable from the record.





The best Mr. Du Toit could do is to contend:





“The effect of
the decision is that the appellant was forced to go through the
criminal proceedings and did not enjoy the benefit of the trial
Court’s considered exercise of its discretion in respect of the
application to stay the proceedings. In this, it is respectfully
submitted, the applicant was prejudiced and materially so.”





This type of prejudice does not constitute the prejudice required
in regard to the merits of the application for a permanent stay of
the prosecution and is no substitute at all for the trial related
prejudice or other exceptional circumstances required for a remedy as
radical as a permanent stay of prosecution.





It follows that the application for a stay had no substance and
should have been rejected by the trial judge on the merits.





The only issue which remains in regard to the application for a
stay, is whether or not the Court a quo should have made an
order for costs against the applicant/appellant. It is not
appropriate to grant costs orders in criminal proceedings or in
proceedings which are criminal in nature and substance. However, in
this case the appellant proceeded on notice of motion and
consequently a cost order would be permissible, particularly where
the process launched by the applicant is without merit.





The Court a quo however, did not consider the merits at all and
should not have ordered the applicant to pay the costs where the
application was merely rejected on the ground of urgency and the
State, represented by the Prosecutor-General, was the only
respondent.





In the circumstances the order of costs should be set aside.





SECTION D:


THE APPEAL AGAINST SENTENCES ON COUNTS 6 AND 7





The accused was sentenced to three (3) years imprisonment, two (2)
years of which were suspended on count 5. This sentence was
appropriate in the circumstances and consequently leave to appeal was
not granted in respect of this count.





Leave was however, granted in regard to counts 6 and 7 where the
sentences imposed were:





Count 6: (Kheimseb): Four (4) years imprisonment.


Count 7: (Seibeb): Four (4) years imprisonment.





Mr. Du Toit made the following submissions in regard to the appeal
against the aforesaid sentences:






“1. It is trite law that the sentencing discretion is that of the
Trial Court; that the Court of Appeal will only interfere when the
Trial Court erred by committing an irregularity or a misdirection in
respect of sentence or if the sentence induces a sense of shock and
is startlingly inappropriate.







2. It is respectfully submitted generally, that counts 6 and 7 do not
warrant as only suitable or reasonable sentence unsuspended terms of
imprisonment; that at worst for the Appellant, the Trial Court
should have considered suspending considerable portions of the
sentences imposed in respect of counts 6 and 7.







3. Furthermore, it is respectfully submitted, the Trial Court erred
in not considering the cumulative effect of the sentences; in the
premises the effective term of nine years’ imprisonment induces a
sense of shock and is startlingly inappropriate in all the
circumstances of the case.







4. It is respectfully submitted that the Trial Court also should have
considered directing sentences to run concurrently under Section 280
of Act 51 of 1977.







  1. It is
    respectfully submitted that the Trial Court erred and/or misdirected
    itself on the facts and/or the law by not finding that:








    1. The Appellant
      at all relevant times had the intention to buy the two trucks;









    1. The purchase
      price was paid over to the Appellant before the trucks were
      purchased;









    1. The greater
      part of the purchase price of the two trucks (N$416 250,00) was
      diverted to Willie Dames to conclude the tyre deal;









    1. The money was
      stolen from Willie Dames and the Appellant was not able to buy the
      trucks;









    1. The Appellant
      had no intention to permanently deprive the complainant of the
      money in that he in fact did pay a few instalments on both
      agreements before his bank account was closed;









    1. There was
      only potential prejudice to the complainant after the money was
      diverted for the tyre deal;









    1. It was not
      due to fault of the Appellant that the money was stolen from Willie
      Dames;









    1. The Appellant
      did not form any intention to defraud the complainant when the
      applications to finance Kheimseb and Seibeb were made.








  1. It therefore
    appears that the Trial Court erred in not considering material
    mitigating factors which would have counted in favour of the
    Appellant at the stage of sentencing.








  1. It is
    respectfully submitted that the sentences in respect of counts 6 and
    7 should be set aside and replaced with appropriate sentences.”









Mr. Small in reply contended that “none of the misdirections
alleged by the Defence was in fact committed, alternatively that they
do not vitiate the Court’s decision on sentence. It would thus be
respectfully submitted that this Honourable Court should dismiss the
appeal”.





Mr. Small also reminded the Court of all the principles applicable
in regard to an appeal against sentence. He referred to the many
authoritative decisions which are well-known and can be regarded as
trite law at this stage. The principles as set out in precedents can
briefly be stated as follows:






  1. “Punishment
    being pre-eminently a matter for the discretion of the trial Court,
    the powers of the Court of Appeal to interfere with sentence are
    limited. Such interference is only permissible where the trial
    Court has not exercised its discretion judicially and properly.
    This occurs when it has misdirected itself on the facts material to
    sentencing or on legal principles relevant to sentencing. It will
    also be inferred that the trial Court acted unreasonably if there
    exists such a striking disparity between the sentences passed by the
    learned trial judge and the sentences which this Court would have
    passed … or to pose the enquiry in the phraseology employed in
    other cases, whether the sentences appealed against appear to this
    Court to be so startlingly … or disturbingly inappropriate – as
    to warrant interference with the exercise of the learned Judge’s
    discretion regarding sentence. A Court of appeal will not readily
    differ from a trial Court in its assessment either of the factors to
    be had regard to or as to the value to be attached to them; …”30






It is also relevant in this case to refer to the guidelines as
expressed in State v Fazzie, where the Court said:






“Where, however, the dictates of justice are such as clearly to
make it appear to this Court that the trial Court ought to have had
regard to certain factors and that it failed to do so, or that it
ought to have assessed the value of these factors differently from
what it did, then such action by the trial Court will be regarded as
a misdirection on its part entitling this Court to consider the
sentence afresh.”31









The judgment of the Court a quo, on sentence, is, generally
speaking, thorough and commendable.





It seems to me however, that the Court has given insufficient
weight to the role played by Carl von Shicht, the senior bank
official who as found by the Court, “masterminded the transactions”
and “deceived” the accused to perpetuate the grave and ugly
offences against the bank. The Court was of course also correct in
pointing out that “the crimes were committed with fraudulent
assistance and cooperation” of the accused.





The fact is that the complainant Bank was extremely lax in its
administration and control. Having a manager or senior official, who
runs the Loan and Hire-Purchase section, not only openly allowing
business without the proper security and relaxing all the rules, must
have been an open invitation for the sort of business in effect done
between the accused and the bank. Where as here, the said manager
“masterminded the transactions” and deceived or encouraged the
accused to proceed as he did, the major cause of the prejudice
complainant suffered was caused by the Bank’s own officials. In
such a situation a client may think with some justification that the
practice to allow these procedures and practices are aimed at
increasing the Bank’s turnover and is not intended to harm the
Bank.





Although the Court correctly convicted the accused and rejected
the argument raised by the defence at the sentence stage that the
accused did not “intend” to defraud the Bank, the Court failed to
consider and/or give the necessary weight to the argument that the
accused did not intend to cause the Bank prejudice and at all times
had the intention to pay the Bank what was due on the transactions,
even though the representations regarding the security, were false.
Proof of this was that certain instalments were in fact paid by the
accused on both agreements before his bank account was closed; the
greater part of the purchase price of the two trucks (N$416 250) was
diverted for a tyre deal but was stolen from Willie Dames with the
result that the appellant was not able to buy the two trucks; the
appellant never fled from Namibia, as Carl von Shicht did, to evade
his responsibility.





Furthermore, it is clear from the judgment that the learned trial
judge had failed to consider that counts 6 and 7 were so closely
related in modus operandi, time, and intention that these two
counts could properly be regarded as one crime in substance and that
the Court should have followed one or more of the following courses
in this regard:






  1. Take the two convictions together for the purpose of
    sentence; or







  1. Order that the sentence imposed on count 7 or part thereof,
    should run together with that on count 6.






The failure of the Court to consider, alternatively to apply this
well-established principle of sentencing, amounts in my respectful
view, to a misdirection justifying this Court to consider a more
appropriate sentence in the light of all the facts and circumstances
of the case.





In my respectful view, counts 6 and 7 should be taken together for
the purposes of sentence and a sentence of five (5) years
imprisonment imposed.





In the result the following order is made:





1. The appeal
against the rejection of the application for a permanent stay of
prosecution, fails.





2. The order of
costs given against the appellant in the Court a quo in regard
to the application for a permanent stay of prosecution, is set aside.






  1. The sentences on counts 6 and 7 are set aide and the
    following order substituted: Counts 6 and 7 are taken together for
    the purpose of sentence and a sentence of five (5) years
    imprisonment substituted for the sentences imposed by the trial
    Court. The substituted sentence on count 6 and 7 will run from the
    date of the original sentence, i.e. from 14/12/2000.















________________________


O’LINN, A.J.A.














I agree.

















________________________


STRYDOM, C.J.














I agree.




















________________________


CHOMBA, A.J.A.











/mv











COUNSEL ON BEHALF OF THE APPELLANT: Mr.
E. du Toit, S.C.


Assisted by Mr. Z.J. Grobler


INSTRUCTED BY: A. Louw &
Co.





COUNSEL ON BEHALF OF THE RESPONDENT:
Mr. D.F. Small


INSTRUCTED BY: The
Prosecutor-General









1
The Government of the Republic of Namibia and Others v G.K. Mwilima
and Others, unreported, NmS, delivered on 7/6/2002




2
Section 85 and 87 of the Criminal Procedure Act 51 of 1977




3
See Wronsky v Attorney-General, 1971(3) SA 292




4
1983(3) SA 717 AD at 728




5
NmS, 21/02/2002, not reported.


See also:
Mushimba v The State, 1977(2) SA 829(A); S v Xaba,
1983(3) SA 717 AD at 728; S v Burger and v/d Merwe, High
Court, SWA, 11/5/89, not reported, S v Alexander & Ors(1)
1965(2) SA 796 (AD) at 809 C – D; S v Ebrahim, 1991(2) SA
553 AD.




6
Art 24, 26, 131




7
Compare the South African Interim Constitution of 1994 where art.
25(3)(a) provide the time to run from “having been charged”.
Art. 35(3)(d) of the final Constitution of 1996 does not specify and
merely describes the right as: “To have their trial begin and
conclude without unreasonable delay”.




8
Wild & A v Hoffert NO & Others, 1998(2) SACR 1 at 13 b-c




9
R v Morin, 8 CRR (2nd) 193 (SCC) at p. 196/7




10
407 US 514, 33 L ED 2d 101, 92 S Ct 2182 at 116 - 118




11
IBID, p. 203




12
S v Heidenreich, 1996(2) SACR 171 (Nm) at 178 d




13
2002(1) SACR 70




14
Sanderson v Attorney General, Eastern Cape, 1998(2) SA 38 CC


Wild &
An v Hoffert NO & Others
, 1998(2) SACR 1




15
The relevance and usefulness of such records are also acknowledged
in the US Supreme Court case of Dickey v Florida, 398 US 30
(1970) 398 US 30 where it was said: “Records are scarce. There
is eg no account of the Senate Debate, and the House deliberations
give little indication of the Representatives intent”. See also
Makwanyane & Another, the quotation from the judgment
written by Chaskalsen, P, infra, when referring to a judgment
written by Kentridge in S v Zuma & Others. Ex Parte
Attorney-General in re the Constitutional relationship between the
Attorney-General and the Prosecutor-General,
1995(8) BCLR 1070
(NmS) at 1080 D – I.




16
S v Strowitzki & A, 1995(1) BCLR 12 Nm at 35 - 36




17
1996(2) SACR 171 Nm




18
(1991) 49 CRR 1 (Supreme Court of Canada) at 20.




19
Ex Parte Attorney-General, Namibia: In re: The Constitutional
Relationship between the Attorney-General and the
Prosecutor-General,
95(2) BCLR 1070 NmS.




20
R v Francois, 18 CRR (2nd) 1994, 187 at 190,
quoting with approval from R v L, (UK) 1991 4 CRR (2nd),
304 - 305




21
1998 NR 160. But in the cases of Strowitzki and Heidenreich,
supra, and Van As and Malama-Kean, infra,
the Namibian High Court rejected the applications for a permanent
stay.




22
Sanderson v Attorney General, Eastern Cape, 1988(1) SACR 227 at 245.




23
1998(2) SACR 1 at 12.




24
The Chairperson of the Immigration Selection Board v Frank &
An
, unreported, NmS dated 05/03/2001.


See also:
Minister of Defence v Mwandinghi, 1992(2) SA 355 (NmS); Van
As & A v Prosecutor-General of Namibia
, 2002(1) SACR 70 at
76 C – I. Compare also: Berg v Prosecutor-General, Gauteng,
1995(11) BCLR 1441 (T) at 1445 G – 1446 E. Ex Parte
Attorney-General, Namibia: In re: The Constitutional Relationship
between the Attorney-General and the Prosecutor-General,
95(2)
BCLR 1070 NmS. At 1080




25
See the decisions in:


Mweuhanga v
Cabinet of the Interim Government & Others
, 1989(1) 976
(SWA)


Shifidi v
Administrator General of SWA & Others
, 1989(4) SA 631 SWA




26
Barker v Wingo, 407 US 514 and Dickey v Florida, 398
US 30




27
2002(1) SACR 70




28
NmHC, 15/10/2001, not reported




29
See The Govt. of the Rep. of Namibia & Ors v G K Mwilima &
Ors , NmS, unreported, delivered on 7/06/2002




30
S v Van Wyk, 1992(1) SACR 147 Nm at 165 d – g and the
authorities collected.


S v De Jager
& An
, 1965(2) SA 616 AD at 629 A – B;


S v Pillay,
1977(4) SA 531 AD at 535 D – G.




31
S v Fazzie, 1964(4) SA 673 AD at 684 B – C


S v Pillay,
1977(4) SA 531 AD at 535 D – G.