Court name
Supreme Court
Case name
S v Strowitzki
Media neutral citation
[2003] NASC 15
















CASE
NO.P3/1997






IN
THE SUPREME COURT OF NAMIBIA


In
the matter between













REINHARD
EUGEN AUGUST STROWITZKI



APPLICANT



And










THE
STATE



RESPONDENT






CORAM: MTAMBANENGWE,
ACJ, TEEK, AJA et CHOMBA, AJA



HEARD ON: 10/04/2003


DELIVERED
ON: 16/09/2003










APPEAL JUDGMENT






CHOMBA, A.J.A.






INTRODUCTION





This
matter came before us as a result of a letter written by the
Registrar of this Court (hereinafter “the Registrar’s” letter)
to Dr. Strowitzki, who, for convenience only, has been cited as the
applicant in the process leading to this hearing. I state that Dr.
Strowitzki has been cited as applicant for convenience’s sake
only because of the reasons I shall delve into in the course of this
judgment. The Registrar’s letter has been pivotal to some of the
arguments which were ably and forcefully submitted by Mr. Geier, who
acted as amicus curiae on behalf of Dr. Strowitzki. I
therefore proceed to reproduce the Registrar’s letter.





It
states :



J H Viljoen



P.3/07 26 April 2002






Adv. H. Geier



Society of Advocates



Namlex Building



WINDHOEK





Dear
Sir






RE: ARGUMENT: DR. R.E.A.
STROWITZKI






The Honourable Chief Justice
requested me to set the application of Dr. R.E.A. Strowitzki down for
proper argument on the following, namely:







“1. Whether the High Court and Supreme Court have jurisdiction to
consider a further application for leave to appeal and/or petition to
grant leave to appeal after refusal of an application by the High and
the dismissal of the petition to the Chief Justice even if the new
application and petition are launched in respect of new or purported
new evidence; and



  1. If
    the Court should find that under the circumstances it has such
    jurisdiction whether the applicant has made out a case for the
    granting of leave to appeal”.







Kindly take notice
that the matter has been set down for argument in the Supreme Court
on Wednesday 2 October 2002 at 10h00.






The Court also requested your
assistance to argue the matter amicus curiae in view thereof
that you were the Counsel in the criminal trial from the beginning.





A copy of the record
which includes all the necessary documentation for purpose of the
argument is attached.





Kindly file Heads of
Argument in the same way as is required in an appeal before the
Supreme Court.






Yours
faithfully






J.H. Joubert



REGISTRAR: SUPREME COURT





Prosecutor-General


High
Court


WINDHOEK




Copy for your attention.







Attached please find a copy
of the record.




J.H. Joubert


REGISTRAR:
SUPREME COURT





cc
R.E.A. Strowitzki


C/o
Hardap Prison


Private
Bag 2135


MARIENTAL”





BRIEF
HISTORY BEHIND DR. STROWITZKI’S SO-CALLED APPLICATION





For
a better appreciation of the submissions which were made on Dr.
Strowitzki’s behalf, a brief summary of the history which
propelled this matter to this court had better be narrated at the
outset. Way back in 1993 in criminal case number 118 of that year,
Dr. Strowitzki was charged together with one Bernd Albert Böck
in an indictment containing 130 counts of fraud. The two stood
trial before O’Linn, J, as he then was. For reasons we need not
enter into, the trial went on into 1996 when both of them were
convicted on all counts. Before sentence could be imposed on them,
Dr. Strowitzki instituted recusal proceedings alleging bias on the
part of the trial judge and consequently seeking the judge to recuse
himself from the case. O’Linn, J heard the application and
dismissed it in due course.





During
the said recusal proceedings an affidavit deposed to by the said
Bernd Albert Böck, who was the second accused in the criminal
proceedings aforementioned, constituted the base of the accusation
against O’Linn, J. At the instigation of the trial judge both Dr.
Strowitzki and the said Böck were prosecuted on four counts
charging, as to the first count that between 9th and 12th
August 1996 the two accused persons colluded with each other with
intent to wrongfully and unlawfully defeat the cause of justice, as
to the second count that between the said same dates the two accused
persons did unlawfully and intentionally vitiate the dignity, repute
and authority of O’Linn, J, as presiding judge in the
aforementioned criminal proceedings, as to the third count, that on
the self same dates the two accused persons did unlawfully and
intentionally depose and swear to an affidavit making false
allegations against O’Linn, J, and as to the fourth count, that on
those very dates the two did wrongfully and unlawfully make false
statements knowing the same to be false.





In
substance the alleged falsehoods were to the effect that while the
criminal proceedings were pending relating to the fraud charges,
O’Linn, J, had made promises to Böck’s mother, now
deceased, and later to Böck himself, that O’Linn, J, would not
send Böck to prison in consequence of the said criminal
proceedings. The four counts were tried by Kotzé, J, who
subsequently convicted Böck on all four counts while acquitting
Dr. Strowitzki completely. After the sentences were imposed in
respect of 130 counts of fraud Dr. Strowitzki unsuccessfully applied
before O’Linn, J. for leave to appeal against both conviction and
sentence. Undaunted by the rejection of his said application, Dr.
Strowitzki submitted a petition to the Chief Justice still seeking
leave to appeal as stated.





On
July 2, 1997, by order of three judges of the Supreme Court, namely
Mahomed, C.J, Mtambanengwe, A.J.A, and Gibson, A.J.A. , Dr.
Strowitzki was informed that his petition for leave to appeal had
been refused. It is necessary at this stage to mention that by
section 316(7) of the Criminal Procedure Act, No. 51 of 1977, (the
Criminal Procedure Act), a petition to the Chief Justice is required
to be considered in chambers by three appellate judges designated by
the Chief Justice. And by subsection (9) (a) of the said section
316, “The decision of the Appellate Division or of the three judges
thereof considering the petition, as the case may be, to grant or
refuse any application, shall be final.”





Somewhat
anomalously, despite the clear provision in section 316(9)(a)
aforementioned Silungwe, J, entertained an application by Dr.
Strowitzki submitted subsequent to the refusal of the petition to
the Chief Justice. The application which Silungwe, J, entertained
was two-fold, viz, for leave to appeal against Dr.
Strowitzki’s conviction on the 130 counts of fraud and
consequential 11 year prison sentence and secondly leave to adduce
new evidence. For reasons which need not detain us it suffices to
state that Silungwe, J, dismissed both applications. It is in
consequence of that dismissal that Dr. Strowitzki once again
submitted a petition to the Chief Justice and it was that petition
which engendered the writing by the Registrar of this court of the
letter I have reproduced hereinbefore.





CONSIDERATION
OF THE REGISTRAR’S LETTER





In
answering the first question posed in the Registrar’s letter the
starting point has to be the time when Dr. Strowitzki first
petitioned the Chief Justice for leave to appeal after refusal of a
similar application which was considered by O’Linn, J. As we have
already seen that petition was treated pursuant to section 316 of the
Criminal Procedure Act. Let me straight away reproduce some
pertinent provisions of that section.





The
Criminal Procedure Act as amended by Act No. 10 of 2001 provides as
follows in as far as section 316 is concerned, quoting only the
pertinent parts of it : -






“ (1) An accused convicted of any offence before the High Court of
Namibia may, within a period of fourteen days of the passing of any
sentence as a result of such conviction or within such extended
period as may on application …….on good cause be allowed, apply
to the judge who presided at the trial ……for leave to appeal
against his or her conviction or against sentence………”







  1. If an application under
    subsection (1) for condonation or leave to appeal is refused …..the
    accused may, within a period of twenty-one days of such refusal, or
    within such extended period as may on good cause be allowed, by
    petition addressed to the Chief Justice submit his application for
    condonation or for leave to appeal or his application to call
    further evidence ….to the Appellate Division, at the same time
    giving written notice that this has been done to the Registrar
    of the provincial or local division……within whose area of
    jurisdiction the trial took place …….and such Registrar shall
    forward to the Appellate Division a copy of the application…...in
    question and of the reasons for refusing such application……








  1. The
    petition shall be considered in Chambers by three judges of the
    Appellate Division designated by the Chief Justice.









  1. The judges considering the
    petition may –




    1. -





    2. whether they have acted
      under paragraph (a) or (b) or not




      1. -



      2. in the case of an
        application for leave to appeal or an application for leave to
        call further evidence, grant or refuse the application…..












    1. refer the matter to the
      Appellate Division for consideration, whether upon argument or
      otherwise, and that Division may thereupon deal with the matter in
      any manner referred to in paragraph (a).









(9)(a) The decision of the
Appellate Division or of the judges thereof considering the petition,
as the case may be, to grant or refuse any application, shall be
final.”









The
Criminal Procedure Act is by origin a South African statute the
application of which was extended to South West Africa as a
dependency of South Africa. The independent state of Namibia adopted
this Act as one of its post-independence laws by virtue of Article
No. 140 of the Constitution of Namibia. Therefore the reference in
that Act to terms such as “Appellate Division” and “judges
thereof” are references in present day Namibia to the Supreme
Court of Namibia or judges of the latter court. In the event in my
further discussion of the Criminal Procedure Act I shall simply refer
to the Supreme Court or judges of that court, in place of the
Appellate Division or judges of that Division.





In
casu
it is common cause that Dr. Strowitzki unsuccessfully
applied for leave to appeal to the trial judge, namely O’Linn, J.,
and later petitioned the Chief Justice in the same vein and that that
petition was considered in chambers by the Chief Justice and two
appellate judges, namely Mahomed, C.J., Mtambanengwe, A.J.A. and
Gibson, A.J.A. Therefore the provisions of section 316 subsections
(1), (6), (7), (8)(c)(ii) and (d) and (9)(a) were satisfied .
Consequently the decision of refusal made by the three appellate
judges in chambers was in terms of subsection (9)(a), final. In this
connection let me stress the peremptory language used in subsection
9(a): it states – “The decision of ….. the three judges ….
considering the petition ……. to grant or refuse any application,
shall be final” (emphasis mine).





The
question which springs from the consequence of section 316 (9)(a) on
the petition of Dr. Strowitzki may be posed, namely, was it
competent for Silungwe, J, to entertain the application made by Dr.
Strowitzki for leave to appeal and leave to adduce further evidence,
considering the finality which that section attached to the decision
made by the appellate judges. Fortunately we do not have to seek far
for an answer to this question.





This
is in the light of the heads of arguments submitted by Mr. Geier in
the first of the four volumes containing his arguments. This is what
is to be found at heading “C. Conclusion” of Volume 1 :





“44. It
would seem therefore that:







    1. The
      proceedings before Silungwe, J, constitute a nullity as Silungwe,
      J, did not have the necessary jurisdiction to hear a further
      application for leave to appeal subsequent to the appeal procedures
      having been exhausted by (Dr. Strowitzki) with the refusal of his
      petition to the Supreme Court during 1997 ; and










    1. The
      further application for condonation and for a special entry in
      terms of section 317 to the High Court can similarly not be
      entertained by such court on those grounds.








  1. It
    has also become clear that no inherent jurisdiction of the High or
    Supreme Courts, to hear such further application, exists.








  1. It
    is submitted therefore that the first question as posed by the
    Honourable Chief Justice in (the Registrar’s letter) must be
    answered in the negative.







  1. It
    follows that in such circumstances question 2 (in the Registrar’s
    letter) does not require determination.”









In agreeing with the
position taken by Mr. Geier regarding the status of the proceedings
before Silungwe, J., Mr. Small went a little further. His contention
was to the following effect, namely that after the refusal of Dr.
Strowitzki’s petition by the three appellate judges, the High
Court, upon being approached by Dr. Strowitzki on a purported
subsequent application, ought to have reacted by informing him that
it had no jurisdiction in the matter. As the High Court did not so
react but instead accepted to entertain the matter, the proceedings
following upon such acceptance were a nullity. Such nullity could
not give rise to a valid further petition to the Chief Justice which
has now been referred by the Chief Justice to this court as evidenced
by the Registrar’s letter.





On
the basis of the extended submission of Mr. Small as in the
preceding paragraph, it can safely be asserted that the referral by
the Chief Justice of Dr. Strowitzki’s matter to us could not have
been done under section 316(8)(d), which, as we have seen, empowers
appellate judges who have been designated by the Chief Justice to
consider a petition in chambers, to refer such petition to the
Supreme Court sitting in open court. In other words the referral can
only be validly made on a valid petition emanating from valid High
Court proceedings, unlike the proceedings before Silungwe, J. By
inverse reasoning, if the purported founding High Court proceedings
are a nullity, no petition can be founded on a nullity. As Lord
Denning stated in the cause celebré on this
point, namely MACFOY v UNITED AFRICA CO. LTD (1961) 3 All E.R. 1169
at page 1172:






“If an act is void, then it is in law a nullity. It is not only
bad, but incurably bad. There is no need for an order of the court
to set it aside. It is automatically null and void without ado,
though it is sometimes convenient to have the court declare it to be
so. And every proceeding which is founded on it is also bad and
incurably bad. You cannot put something on nothing and expect it to
stay there. It will collapse.”









Lord
Denning’s dictum portrays graphically the emptiness of judge
Silungwe’s purported dismissal of Dr. Strowitzki’s purported
application. Therefore no petition could be premised on it.





In
the result, on the common view taken by both Mr. Geier and Mr. Small
relating to the present referral of Dr. Strowitzki’s case to this
court, these proceedings would falter at this stage and could not be
taken any further but for the alternative arguments forcefully
adduced by Mr. Geier into which I shall now delve.





MR. GEIER’S
SUBMISSIONS





One
of the arguments advanced by Mr. Geier touched on the status of
judges of the Supreme Court sitting in chambers. Are they to be
regarded as being at par with the Supreme Court sitting in open
court? If not, what authority does a decision made in chambers by
such judges carry? Do judges sitting in chambers constitute a court
of record?





In
advancing his arguments touching the foregoing questions Mr. Geier
referred to statutory as well as constitutional provisions. In this
vein he referred to Article 79(1) which defines the composition of
the Supreme Court. By this article and sub-article –






The Supreme Court shall
consist of a Chief Justice and such additional judges as the
President, acting on the recommendation of the judicial service
commission, may determine.”









He
linked this article with section 6 of the Supreme Court Act, No. 15
of 1990 (hereafter the Supreme Court Act) which provides that –






Save as otherwise
provided in Art. 12(1)(a) and (b) of the Namibian Constitution, all
proceedings in the Supreme Court shall be carried out in open court.”









Crowning
the argument on the question of the status of judges sitting in
chambers, Mr. Geier also referred us to section 16(1) of the Supreme
Court Act, which gives the Supreme Court the additional power of
review. For a better appreciation it is needful to quote this
provision in full thus –






16.(1) In addition to
any jurisdiction conferred upon it by this Act the Supreme Court
shall, subject to the provisions of this section and section 20, have
the jurisdiction to review proceedings of the High Court or any
lower court, or any administrative tribunal or authority established
or constituted by or under any law.”









Submitting
on the foregoing legal provisions, Mr. Geier argued that since the
Supreme Court is mandatorily required to sit in open court,
appellate judges sitting in chambers could not be considered to
constitute the Supreme Court as provided in Article 79(1) of the
Constitution. Therefore, he concluded that the appellate judges
sitting in chambers constitute a lower court falling within the
contemplation of section 16(1) of the Supreme Court. In the event
he contended that a decision of judges sitting in chambers was
reviewable by the Supreme Court sitting as we did in open court in
the present hearing. It was his further contention that a sitting in
chambers is not a court of record. In making this submission he was
focusing his attention on the decision of Chief Justice Mohamed
sitting in chambers with acting appellate Justices Mtambanengwe and
Gibson when they refused the petition by Dr. Strowitzki for leave to
appeal.





These
submissions beg a number of questions some of which are – first,
what is a lower court within the purview of subsection (1) of section
16 of the Supreme Court Act; secondly, are proceedings taken in
chambers by three appellate judges any less in the authority they
carry than those proceedings held in open court; thirdly, in the
light of section 6, what is the validity of proceedings held in
chambers by appellate judges?





One
answer to the question regarding the authority of a decision made in
chambers by appellate judges is to be found in section 316(9)(a) of
the Criminal Procedure Act. As we have seen that section places such
a decision at par with a decision made by the Supreme Court sitting
in open court. Both decisions are final. By necessary implication
section 316(9)(a) belies the argument that judges sitting in chambers
constitute a lower court. Additionally the position is made more
explicit by Article 83 of the constitution. This is what that
article states –




83. Lower Courts







(1) Lower courts shall be
established by Act of Parliament and shall have the jurisdiction and
adopt the procedures prescribed by such Act and regulations made
there under;







(2) Lower courts shall be
presided over by Magistrates or other judicial officers appointed in
accordance with procedures prescribed by Act of Parliament.”










Consistent
with Article 83 the Criminal Procedure Act, in section 1(1) defines
“lower court” as meaning any court established under the
provisions of the Magistrates’ Courts Act No. 32 of 1944.”





More
light is thrown on to this issue by sub-article (4) of Article 79.
This provides that the jurisdiction of the Supreme Court with regard
to appeals shall be determined by Act of Parliament. In this country
there are two such Acts which prescribe the jurisdiction of the
Supreme Court, these being the Supreme Court Act and the Criminal
Procedure Act. The former deals more elaborately with civil
appellate jurisdiction while the latter deals more elaborately with
criminal appellate jurisdiction. In this sense we can state that
both these statutes derive their authority from the constitution.





Furthermore,
section 315 of the Criminal Procedure Act carrying the rubric
“Appeals in cases of criminal appeals in superior courts”
provides as hereunder:






“(1) In respect of appeals and questions of law reserved in
connection with criminal cases heard by the High Court of Namibia,
the court of appeal shall be the Supreme Court of Namibia.








  1. An appeal referred to in
    subsection (1) shall lie to the Supreme Court of Namibia only as
    provided in sections 316 to 319 inclusive, and not as of right.”










We
have already seen that section 316(7) of the Criminal Procedure Act
makes provision for criminal petitions addressed to the Chief Justice
to be considered in chambers by three appellate judges designated by
the Chief Justice. Quite clearly this provision places the three
judges sitting in chambers on a higher pedestal than that of judicial
officers who preside in lower courts. The three judges are involved
in the scheme of appeals to the Supreme Court. In the event to argue
that such judges sitting in chambers constitute a lower court flies
in the face of an express statutory provision.





When appellate judges in
chambers consider issues pertaining to criminal appeals do they
constitute a court of record or not? Mr. Geier’s answer is, they
do not. This answer is, in my view, premised on false ground. Let
us consider a real situation which happens regularly in this court.
Decisions made by judges in chambers when considering petitions are
in actual fact recorded whether they be in the negative or in the
affirmative. Where the decision is one of granting the petition, the
record of such grant goes forward to the Supreme Court sitting in
open court when the latter hears the substantive appeal. This court
would then note, as we have always done, that the appeal comes to it
after the appellant was granted leave to appeal. In so stating we
refer to the record emanating from chambers. Moreover this court did
in the case of AFSHANI and ANOTHER v. KATRIN VAATZ, CASE NO. SA
9/2002 (unreported) recognize that when a judge is sitting in
chambers he is by necessary implication required to keep a record of
the proceedings. Delivering the judgment of the court, O’Linn.
A.J.A. had this to say at page 13 :-






Although there is no
express provision in any law or rule of court for a judge in chambers
to keep a record, it is clearly a necessary implication from the
provision that a judge is the functionary and from rule 48 itself,
that a record must be kept of the proceedings in chambers.”









I
must, however, hasten to point out that the dictum of O’Linn was
made in reference to a High Court judge dealing with a civil matter
in chambers and the question in Afshani was whether a decision
of such a judge was a judgment or order which, in terms of section 18
of the High Court Act, No. 16 of 1990, provides in subsection (1)
that an appeal from a judgment or order of the High Court in any
civil proceedings shall be heard by the Supreme Court. In
contradistinction from the present case, which is criminal, I must
stress that Afshani was a civil case which turned on
considerations alien to the present one. The considerations raised
in liminé in Afshani were : whether the
decision of a judge in chambers on a review was final and without a
right of appeal, or, in the alternative, even if there was a right of
appeal, whether leave to appeal was required but not actually
obtained. In Afshani, therefore, the provision in section
316(9)(1) of the Criminal Procedure Act did not fall for
consideration.





The
third issue I must now address is as regards the status of
proceedings before appellate judges in chambers in the light of the
requirement of section 6 of the Supreme Court Act. As already noted,
that section requires that save as provided in article 12(a) and (b)
proceedings in the Supreme Court must be held in open court. If the
provisions in this section are to be construed in their literal or
ordinary sense, then no valid business can be conducted in the
Supreme Court otherwise than in open court. Is such a situation
tenable? According to Mr. Geier it is tenable because in relying on
section 6 he has impugned the validity of the decision made by the
three judges who rejected Dr. Strowitzki’s petition in chambers
and labeled it a decision made by a lower court.





Unhappily
the word “proceedings” is not defined in the Supreme Court Act
and I am presently not aware of any other statute or constitutional
provision which offers such a definition. In the event, I am of the
view that since the meaning of section 6 aforesaid has been brought
under scrutiny in the current case, it is incumbent on this court to
find a purposive meaning of that word. In attempting to do this I
have to consider the range of business conducted in the Supreme
Court.





Article
79(4) of the constitution simply provides – “The jurisdiction of
the Supreme Court with regard to appeals shall be determined by Act
of Parliament.” When the Supreme Court Act was enacted in 1990,
Parliament provided not only for appellate jurisdiction of the
Supreme Court, but also provided for jurisdiction to hear and
determine other matters. Thus by section 2 of the Supreme Court Act
it is enacted as follows :






The Supreme Court shall
have jurisdiction to hear and determine appeals and any such other
matters
which may be conferred or imposed upon it by this Act or
the Namibian Constitution or any other law”. (underlining
supplied).









This
provision puts one on inquiry as to what other matters fall within
the jurisdiction of the Supreme Court and how such matters are to be
dealt with or in other words, what procedure is to be employed in
dealing with the other matters.





By
Article 79(2) “(T)he Supreme Court shall be presided over by the
Chief Justice and shall hear and determine appeals emanating from the
High Court ….. The Supreme Court shall also deal with matters
referred to it for decision by the Attorney-General under this
constitution, and with such other matters as may be authorized by Act
of Parliament.” Looking far afield, this time at the Supreme
Court Act itself, there are three other provisions which vest in the
Supreme Court jurisdiction in respect of other matters. Section
14(6)(a) imposes on the Supreme Court jurisdiction to hear petitions
for leave to appeal. Section 15(1) of the same Act reaffirms the
jurisdiction of the Supreme Court to entertain matters referred to
it by the Attorney-General and section 16(1) vests in the Supreme
Court the jurisdiction of review of proceedings of the High Court,
any lower court, or any administrative tribunal or authority
established by or under any law. The jurisdiction to receive and
determine petitions for leave to appeal is also prescribed by the
Criminal Procedure Act as already shown.





In
as far as the procedural requirements of entertaining appeals,
referrals by the Attorney-General and petitions for leave to appeal
are concerned, these too are prescribed by statute. So far as the
hearing and determining of substantive appeals is concerned the
position does not lend itself to doubt. These are heard in open
court with a normal complement of three judges one of whom must be
the Chief Justice as presiding officer. (Art. 79(2).)





Regarding
petitions for leave to appeal to the Supreme Court in criminal cases,
these are required to be addressed to the Chief Justice who is given
power to designate three appellate judges to consider the same in
chambers. As regards petitions for leave to appeal in civil cases,
by section 14(3)(b) of the Supreme Court Act, they are to be
considered by the Chief Justice or any other judge designated for the
purpose by the Chief Justice. To this end the Chief Justice or the
designated judge may entertain arguments from the parties or their
counsel before determining a petition one way or the other. By
necessary implication such consideration of a petition, including the
hearing of arguments, is to be conducted in chambers because there is
no statutory provision for one judge only to hear and determine any
matters in open court.





Coming
to the procedure of dealing with referrals from the Attorney-General
to the Supreme Court an unclear situation exists. According to
Article 79(3) “(T)hree judges shall constitute a quorum of the
Supreme Court when it hears appeals or deals with matters referred to
it by the Attorney-General under this constitution: provided that
provision may be made by Act of Parliament for a lesser quorum in
circumstances in which a judge seized of an appeal dies or becomes
unable to act at any time prior to judgment.” The impression
conveyed by this clause is that referrals, like appeals, are to be
heard in open court with a normal complement of 3 judges. On the
other hand the combined effect of sub-rules (1) and (4) of rule 6 of
the Supreme Court Rules is that when the Attorney-General refers a
matter to the Supreme Court as provided under the constitution he/she
has to do so by application addressed to the Chief Justice and the
application has to be in the nature of a petition. The petition
falls to be considered either by the Chief Justice or by a judge of
the Supreme Court (sub-rule 4). In terms of rule 6, therefore, the
referral by the Attorney-General has to be considered by one judge in
chambers. Thus there appears to be a conflict between the
constitutional provision and that found in the rules.





We were not addressed on
this apparent conflict and therefore it would be imprudent to attempt
any definitive conclusion on the matter. In any case the provisions
cited earlier have amply demonstrated that the procedure of hearing
certain matters in chambers is entrenched by statute, namely by the
Supreme Court Act and the Criminal Procedure Act. Both statutes
derive their efficacy from the constitution as we have seen. This
leads me to the contention raised by Mr. Geier in regard to section
6 of the Supreme Court Act. He argued that all proceedings of the
Supreme Court ought unfailingly to be held in open court.





As
we have seen the section provides in apparent mandatory terms, that
all proceedings in the Supreme Court shall be conducted
in open court. If the section is to be understood in the ordinary
grammatical or literal sense then it means that hearing proceedings
in chambers is not legally permissible. In other words proceedings
in chambers are null and void in law. But is that the true legal
position?





The
following dictum by Park B. in BECK v SMITH (1836) 2M and W 191 at
page 195 is now held as the locus classicus and is
hallowed as the “Golden Rule” of construction of deeds and
statutes. He said -






The rule (i.e. the golden
Rule) is a very useful rule in the construction of a statute, to
adhere to the ordinary meaning of words used, and to the grammatical
construction, unless that is at variance with the intention of the
legislature, to be collected from the statute itself, or leads to any
manifest absurdity or repugnance in which case the language may be
varied or modified, so as to avoid such inconvenience, but no
further.”








Against
the backdrop of the golden rule what construction should we put on
the provisions of section 6 of the Supreme Court Act? Does it indeed
mean that all proceedings in the Supreme Court, including all
proceedings of an interlocutory nature, should be transacted in open
court?





We
have already noted that the supreme Court Act itself has provided
that petitions for leave to appeal from High Court judgments or
orders, both in criminal and civil matters, may be dealt with by an
appellate judge or judges in chambers though procedural law allows
the judges in certain circumstances to refer petitions and/or
applications to the Supreme Court sitting in open court. It has
also, though in apparent conflict with the Constitution, provided
that petitions from the Attorney-General may equally be considered in
chambers by the Chief Justice or an appellate judge. The Criminal
Procedure Act, which I must emphasize, also derives its authority
from the Constitution, similarly makes provision for petitions for
leave to appeal to be considered in chambers by three judges of the
Supreme Court.





It
is thus clear that the intention of the legislature is not to bind
the Supreme Court to consider in open court all and sundry matters
coming before it. It would be not only absurd and inconvenient to
conduct all proceedings in open court, it would also be extremely
costly to parties for such procedure to be adopted. Whereas in
chambers some matters can be considered in the absence of the parties
or their counsel, this cannot be so where open court hearings have to
be held. Open court proceedings more often than not entail costs,
especially in civil matters.





Consequently
I venture to hold, and do in fact so hold, that the word
“proceedings” as used on section 6 has a special and restricted
meaning. It means proceedings pertaining to substantive appeals. To
hold otherwise would be unrealistic and absurd, and indeed, as I
observed in responding to Mr. Geier’s submissions on this matter,
I have yet to learn of any appellate court in any country which hears
in the open court practically all matters coming before it. I
would, therefore, and with due respect dismiss as untenable Mr.
Geier’s vehement submissions on this issue.





Concomitant
with the argument that all proceedings in the Supreme Court should
be held in open court was a further submission by Mr. Geier that
there was an irreconcilable conflict between section 6 of the Supreme
Court Act and section 316(7) of the Criminal Procedure Act. He
argued that in such an event the law implies that the later law has
repealed the earlier law. As the Supreme Court Act was enacted in
1990 whereas the Criminal Procedure Act was enacted in 1977, section
316(7) is presumed, according to Mr. Geier, to have been repealed by
implication by section 6. That argument is untenable in the light of
the result I have come to in applying the golden rule of construction
to section 6 of the Supreme Court Act.





Yet another forceful
argument put forward by Mr. Geier is that this court should act
under section 16(1) of the Supreme Court Act, that is by way of
review. He urged that section 16(1) vests in the Supreme Court
additional jurisdiction over and above its appellate jurisdiction.
To this end therefore, notwithstanding the fact that in accordance
with section 316(9)(a) of the Criminal Procedure Act the refusal by
the three judges in chambers was a final decision, the court thus has
additional jurisdiction to enable it to reopen the High Court case
and review it because of irregularities committed by the trial judge
in the course of the trial proceedings. He was at pains in citing a
number of cases which define what kind of irregularities would
justify a review and in which it was held that the irregularities are
acts which occur during a trial and not in consequence thereof.





The
review jurisdiction is to be invoked by this court mero motu.
This legal requirement did not escape the attention of Mr. Geier and
he therefore repeatedly reminded us that there was no application
for review before us. He contended that the reviewable
irregularities would come to our attention by reading the records of
the present case. In order to invoke the review jurisdiction a
prescribed procedure has to be complied with. This procedure is to
be found in rule 7 of the Supreme Court Rules. The rule provides : -






Wherever it comes to the
notice of the Chief Justice or any other judge of the Supreme Court
that an irregularity has occurred in any case contemplated in section
16 of the Act, and he or she decides to invoke the review
jurisdiction of the Supreme Court in terms of that section –






(a) the parties affected and
the court or tribunal or authority referred to in the said section
shall be informed of that decision by the registrar; and








  1. the provisions of rule
    6(5)(b) and (6) shall mutatis mutandis apply.”






The
said provisions of rule 6 state as hereunder :-






(5) If the Chief Justice
or any such judge of the Supreme Court, as the case may be, decides
that an application is, by virtue of its urgency or otherwise of a
nature sufficient to justify the exercise of the courts’
jurisdiction as contemplated by section 15 of the Act –







(a) the petitioner or his or
her attorney and the respondent, if any, or his or her attorney,
shall be so informed by the registrar.





(b) the Chief Justice or such
other judge, as the case may be, shall thereafter direct –









    1. what pleadings or
      affidavits or documents are required to be filed by the parties to
      the proceedings;











    1. the period within which
      such pleadings or affidavits or documents shall be lodged;











    1. whether or not any special
      dossiers are required to be compiled in terms of section 23 of the
      Act and if so, the time within which such dossiers are required to
      be lodged;











    1. the date on which the
      Supreme Court shall hear the matter or any interlocutory
      proceedings pertaining thereto.









(6) The Chief Justice or such
other judge, as the case may be, shall be entitled to call for or
to hear argument from affected parties with regard to matters
referred to in sub-rule (5), and such a hearing or such argument may
be considered by the Chief Justice or such other judge of the Supreme
Court as he or she may designate for that purpose.”





As
can be seen there is quite an elaborate procedure to be followed if a
matter is to be reviewed under section 16(1). That procedure was not
complied with and in particular the affected parties have not been
given the opportunity to make representations pursuant to rule
6(5)(b) and (6). Moreover much as Mr. Geier tried to persuade us to
invoke the review jurisdiction mero motu we did not
share his contention that the trial before O’Linn, J., should be
reviewed. It is to be noted that Mr. Geier did concede that if the
court did not find it fitting to invoke its review jurisdiction mero
motu
then that would be the end of the matter.





As
the review argument did not find favour with the court, I find it
otiose to delve into the many cited authorities which Mr. Geier
referred us to on the point.





Another
contention Mr. Geier submitted was in relation to inherent
jurisdiction. In this connection he cited the case of SEFATSA and
OTHERS v. ATTORNEY-GENERAL, TRANSVAAL and ANOTHER 1989 (1) SA 821.
That was a case in which the Appellate Division of the Supreme Court
of South Africa was urged to exercise its inherent jurisdiction to
regulate its proceedings by way of carrying out a reappraisal of the
convictions of the appellants in the light of further evidence which
tended to show that the trial court was the victim of fraud.
Rabbie, Acting Chief Justice, who delivered the judgment of the court
stated at page 334, letter E. the following :






The cases referred to
immediately above would seem to show, in my opinion that it is the
settled view of this court that its jurisdiction in criminal matters
is determined by statute, i.e. the Criminal Procedure Act and such
other relevant statutory provisions as there may be.”









Later
at pages 838 letter J and 839, letters A-C the learned Acting Chief
Justice had the following to say –






Records of this court
relating to the matter reveal the following. The Chief Justice
referred the petition for leave to appeal to a member of this
Division (see section 316(7) of the Criminal Procedure Act 51 of
1977, as worded at that time ) who, after considering it, refused
leave to appeal. Sikweyiya was so notified. About ten days later
the same judge cancelled his refusal of leave and granted leave.
Sikweyiya was then notified that leave had been granted. There was
no judgment by this court on the matter. The decision of the judge
when he refused leave was, in terms of section 316(9) of the Criminal
Procedure Act 51 of 1977, ‘final’, and the granting of leave
thereafter appears to have been contrary to the provisions of section
316 (9). It hardly needs saying that a court cannot have an
inherent jurisdiction which would entitle it to act contrary to an
express provision of an Act of Parliament
. Sikweyiya’s case
cannot, therefore, be regarded as authority for the petitioners’
submission (underlining mine).”









Mr.
Geier urged that the foregoing dicta by Rabbie, A.C.J., were now non
sequitur
because of the coming into force in South Africa of
Article 173 of the Final Republic of South Africa Constitution Act
No. 108 of 1996. By that article the superior courts in South Africa
have been vested with inherent jurisdiction. The Article provides -






“ The Constitutional Court, Supreme Court of Appeal and High Courts
have the inherent power to protect and regulate their own process,
and to develop the common law, taking into account the interests of
justice.”









Back
here at home Article 78(4) of the constitution has provisions which
are virtually in pari materia with Article 173, supra.
The article is couched in the following terms –






The Supreme Court and the
High Court shall have inherent jurisdiction which vested in the
Supreme Court of South West Africa immediately prior to the date of
independence, including the power to regulate their own procedures
and to make court rules for that purpose.”





In distancing himself
from the dicta of Rabbie A.C.J., see supra, Mr. Geier submitted that
the ‘fair hearing’ provisions in Art. 12 of the Constitution
reinforce the need for the Supreme Court to exercise inherent
jurisdiction in order to do justice. The pertinent provisions of
Art. 12 are the following : -






“(1)(a) In the determination of their civil rights and obligations
or any criminal charges 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 of morals, the public order or
national security, as is necessary in a democratic society;







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










As
regards the need for invoking the inherent jurisdiction granted by
the constitution, I would concur with learned Acting Chief Justice
Rabbie that a court cannot have inherent jurisdiction which would
entitle it to act contrary to an express provision of an Act of
Parliament. In other words the exercise of inherent jurisdiction is
justified where there is a lacuna in the law. In this country
there no lacuna on the issue under review: in fact there is
an express provision, namely section 316(9)(a), which dictates that
the refusal decision by three appellate judges sitting in chambers
shall be final.





Article
140(1) of the constitution provides that all laws which were in force
immediately before independence shall remain in force until repealed
or amended by Act of Parliament or until they are declared
unconstitutional by a competent court. Neither of these two
contingencies has occurred in respect of section 316(9)(a) of the
Criminal Procedure Act. Therefore it still stands as part of the law
of independent Namibia. In the event this court has no option but to
apply it in the present circumstances.





Reverting
to the fair hearing issue, I am by no means persuaded that Dr.
Strowitzki was denied a fair hearing when he was jointly tried with
Böck before O’Linn, J. I am reinforced in this view having
regard to the fact that the records pertaining to this case show that
the matters which were alleged to have constituted bias on the part
of O’Linn, J, were exposed to be false in a subsequent trial
conducted by Kotzé, J. Böck was convicted of having told
falsehoods. In any event Böck was not only convicted by
O’Linn, J, on all the 130 fraud counts, but he was also sent to
prison for 11 years, contrary to the complaint by Dr. Strowitzki that
Böck was promised by O’Linn, J, that he would not be sent to
prison. In my view therefore any motion of bias on O’Linn, J’s
part was no more than fanciful rather than one borne in
reasonableness.





In
the final analysis, I am of the firm view that much as I commend Mr.
Geier for his industry, resourcefulness and thorough research which
enabled him to argue his case with great verve, Dr. Strowitzki was
not properly before this court in these proceedings. I must stress
that he came by way of petition addressed to the Chief Justice after
the purported dismissal of his applications considered by Silungwe,
J. The Chief Justice then instructed the Registrar to refer the
matter to us via the Registrar’s letter quoted at the very
beginning of this judgment. I reiterate that the first of the two
questions posed in the letter was seeking our answer to the question
whether this court had jurisdiction “to consider a further
application for leave to appeal and/or petition to grant leave to
appeal after refusal of an application by the High Court and
dismissal of the petition to the Chief Justice even if the new
application and petition are launched in respect of new or purported
new evidence.”





I
have exhaustively, I believe, pondered over this question and the
overwhelming conclusion I have arrived at is that this court does
not, in the circumstances of this case, have jurisdiction to
entertain the matter. In the event, the second question posed by the
letter is irrelevant. In passing, however, I would, once again,
remind Dr. Strowitzki that if he still feels strongly that he has
been paid short shrift in his search for justice, he may avail
himself of the provisions of section 327 of the Criminal Procedure
Act the effect of which is to seek the exercise of the presidential
prerogative of mercy in his favour.





As
for the present case it is struck off the role on the ground that
this court lacks jurisdiction to entertain it. I order accordingly.























________________________



CHOMBA, A.J.A.











































I agree



























________________________



MTAMBANENGWE, A.C.J.























I agree



























________________________


TEEK,
A.J.A.


















COUNSEL
FOR THE APPLICANT : ADVOCATE H. GEIER


(AMICUS
CURIAE
)








COUNSEL
FOR THE STATE : ADVOCATE D.F. SMALL


(PROSECUTOR-GENERAL’S
OFFICE)