COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
the matter between:
COURT MAIN DIVISION REVIEW REF NO.: 1435/2011)
v Titus (CR
61/2013; CR 64/2013; CR 65/2013)  NAHCMD 359 (28 November 2013)
SHIVUTE J et
04 November 2013
28 November 2013
used for breathalyzers testing approved by the Minister in terms of
section 82 (7) of Act 22 of 1999. Such must meet the requirements of
section 82 (7) read with section 94 (3) and 94 (4) of the Act. GN 100
of 2003 which contains the approval not meeting those requirements
conviction and sentences in all cases are set aside.
conviction and sentences imposed in each of the cases are set aside.
AJ (SHIVUTE, J and SIBOLEKA, J concurring):
There are before us three matters, emanating from the Magistrate’s
Court and forwarded to this Court for review purposes.
What they have in common is that in each case the accused was charged
with and convicted of having contravened Section 82 (5) of the Road
Traffic and Transport Act, Act 22 of 1996. The section reads as
‘(5) No person shall on a public
a vehicle; or
the driver’s seat of a motor vehicle of which the engine is
running, while the concentration of alcohol in any specimen of breath
exhaled by such person exceeds 0.37 milligrams per 100 millilitres.’
Section 82 (5) must be read together with section 82 (7) which reads
‘(7) For the purposes of
subsection (5), the concentration of alcohol in any breath specimen
shall be ascertained by means of a type of device which is approved
by the Minister by Notice in the Gazette and which conforms to such
requirements, including the requirements of any standard publication
contemplated in section 94 (4) as may be specified in such notice.’
Pursuant thereto the Minister of Works, Transport and Communication,
who is the “Minister” for purposes of the Act published
the following Notice in Government Gazete 2978 on 15 May 2003:
‘MINISTRY OF WORKS, TRANSPORT
Traffic and Transport Act
Minister of Works, Transport and Communication has in terms of
section 82 (7) of the Road Traffic and Transport Act, 1999 (Act 22 of
1997 approved that the concentration of alcohol in any breath
specimen shall be determined by means of any device that complies
with the requirements of the South African Bureau of Standards:
Standard Specification “SABS 1973 : 1998 Evidential breath
& Communication, Windhoek, 30 April 2003.’
Insofar as the relevant Notice contains a reference to a standard
publication it is necessary to also refer to sections 94 (1), 94 (2)
and 94 (3) of the Act. They read as follows:
‘(1) The power confined by
section 91 or 92 to make regulations shall include the power to
incorporate in any regulation so made any standard publication
contemplated in subsection (4), or any part thereof, without stating
the text thereof, by mere references to the number, title and year of
that standard publication or any particulars by which it is
provision of a standard publication incorporated in regulations
under subsection (1) shall, for the purposes of this Act in so far
as it is not inconsistent with such regulations, be deemed to be a
incorporating any standard publication under subsection (1) shall
state the place at and times during which a copy of such publication
shall be available for free inspection, including copies of any
supplementary standard publication or specification or document
incorporated by references in the main standard publication.’
This legal framework was the setting in which the matter of S v
Heathcote (CA 24/2013)  NAHCMD 195 (12 July 2013) came
before this Court.
In that matter Ndou AJ was requested to grant to the state leave to
appeal against a decision of the learned Regional Magistrate at
Swakopmund in which the learned Magistrate held the GN 100 of 2003
(quoted above) is ultra vires the Act.
The learned judge’s reasons for concluding that the learned
Magistrate was correct appears from the following passage in his
My reading of this submission by prosecutor is that the minister did
not comply with the provisions of subsection 94 (3) and (4) but that
such omission is not fatal so as to render the Notice ultra
vires the said
statutory provisions of the Road Traffic and Transport Act. The
Prosecutor was conceding that there are flaws in the promulgation of
the said Government Notice. As alluded to above, Mr Small’s
submission is that there were no flaws in the promulgation as the
Minister did not have an obligation to comply with the provisions of
subsection 94 (3) and (4), supra,
in making the Notice. In other words, subsections 94 (3) and (4) did
not apply to the promulgation of the said Government Notice.
I propose to consider these two submissions in turn. As far as the
submission made by the trial prosecutor is concerned, it is beyond
dispute that the Minister is empowered by Section 82 (7) to make the
Notice in issue. But, the Minister is enjoined to do so in compliance
with the requirements enshrined in Section 94 (3) and (4). Section 94
(3) is peremptory and it provides – “(3) Regulations
incorporating any standard publication under subsection (1) shall
state the place at and times during which a copy of such standard
publication shall be available for free inspection, including copies
of any supplementary standard publication or specification or
document incorporated by reference in the main standard
application” (emphasis added). Because of the peremptory nature
of the provisions of Section 94 (3), supra, the application
has no reasonable prospect of success on appeal. Coming to the ground
set out in the Notice of Application for Leave to Appeal, as alluded
to above, it is essentially submitted that the provisions of Section
94 (3) and (4) are not applicable to the making of the Notice. It is
beyond dispute that Notice 100 of 2003 incorporates “The South
African Bureau of Standards specification – Evidential Breath
Testing Equipment” (SABS) (ie a standard publication) by
reference pursuant to provisions of Section 94 (4), supra.
It is further beyond dispute that this SABS was not published as
required by Section 94 (3), Supra.
Even without the provisions of Section 94 (3), before a law becomes
effective, it has to be promulgated, this applies not only to
statutes but also to regulations or by-laws which are intended to
have the force of law - R v Koening, supra, and S v Carracelas
and others, supra. In essence, what the applicant is saying is
that the mere reference to a foreign standard publication, SABS, in
the Notice is sufficient. It is up to the Namibian citizens affected
by the use of the breathalyzer equipment to source for such standard
publication from South Africa. It is clear that Section 94 (3) was
specifically introduced by the legislature to curb such half-hearted
publication by the Minister. The effect of the use of the
breathalyzer device, as an evidential aid, is indeed grave to several
Namibian drivers. The penalties for contravention Section 82 (5) are
indeed severe. The use of such a device leads in certain instances,
to an adverse inference operating against the offender. How is an
offender charged under Section 82 (5) to know about the equipment
being used to determine his guilty if the Notice does not provide
The learned judge for those reasons refused to grant leave to appeal.
Thus the situation now exists that the state cannot rely on the
devices mentioned by the Minister of GN 100 of 2003.
This clearly has serious consequences for the law enforcement
agencies and the State in its prosecutions.
It is for that reason that the learned Judge-President directed that
the three matters be placed before us to determine whether the
convictions are competent in view of the judgment of Ndou AJ in S
v Heathcote supra.
We are indebted to Mr. Hinda SC who appeared amicus curiae, to argue
the matter on behalf of the accused.
Mr. Small together with Mr. Marondedze appeared for the State.
Before I consider that issue I deem it necessary to consider the fact
that each of the accused pleaded guilty when the charge was put to
them. When questioned in terms of section 112 (1)(b) of Act 51 of
1977 each accused admitted that at the relevant time the
concentration of alcohol in the breath specimen taken exceeded the
A document reflecting the reading determined by the device used to
take the specimen was handed in, in respect of each case.
The admissions made by the accused regarding concentration of
alcohol, were admissions of facts outside their personal knowledge.
In S v Naidoo 1985 (2) SA 32 (N) at 37 G it was held that the
Court not only has to ascertain, where facts outside the knowledge of
the accused are admitted, whether the admitted facts, if accepted as
correct will establish all the elements of the offence, but also
whether the admission is reliable.
See also S v Adams 1986 (3) SA 733 (C). It has virtually
become the practice in cases of this nature to produce proof of the
analysis, as was done in the instant case.
However if the device used to make the analysis is not properly
approved in accordance with the Act, it cannot be said that the
analysis is reliable and hence any admission made pursuant thereto
equally becomes unreliable. I conclude therefore that if the device
was not properly approved, any admission based upon an analysis
obtained by means of it cannot be relied upon.
It is now necessary to consider whether GN 100 of 2003 was issued in
compliance with the provisions of section 82 (7) of the Act.
Mr. Small, during the course of argument, before us, launched a two
pronged attack against the judgment of Ndou AJ. He submitted firstly
that section 94 finds no application. GN 100 of 2003 is not,
according to him a regulation published in terms of section 91 of the
Act. Instead it was a notice published in terms of section 82 (7) of
the Act. It is apparent from a reading of section 91 of the Act that
the Minister is entitled to make regulations regarding the method of
determining any fact which is required for the purposes of the Act
(Section 91 (2) (xxiii).
That the Minister did not purport to act in terms of the powers
vested in him by Section 91 is to my mind beyond dispute. GN 100 of
2003 makes it abundantly apparent that the Minister purported to
exercise the powers conferred upon him by section 82 (7) of the Act.
To that extent the submission made by Mr. Small is correct.
Mr. Small advanced what I will call a fall back submission. For that
submission he relies on section 376 (1) of the regulations published
as GN 53 of 2001 in Government Gazette 2503 dated 30 March 2001. It
reads as follows:
(1) A standard publication incorporated into these regulations in
terms of section 94 of the Act is available for inspection as
contemplated in that section, during office hours at the office of
the Deputy Permanent Secretary of Transport of the Ministry
responsible for Transportation, Windhoek.’
Thus, so the argument goes, there have been compliances in any event,
with the requirements of the Act.
The regulations published in GN 53 of 2001 were published in terms of
section 91 of the Act.
There was some differences between counsel for the State and counsel
for the accused whether the use of the words “these
regulations” confine section 376 (1) to the regulations
published in GN 53 of 2001 only or whether it is a general
application in relation to all regulations published in terms of
section 91 of the Act. I incline to the view that section 376 (1) is
of application only to the regulations published in GN 53 of 2001. In
the end it does not matter anyway. If, as Mr. Small correctly
submitted, GN 100 of 2003 is not a regulation issued pursuant to
section 91 of the Act, GN 53 of 2001, does not apply to it.
It remains to consider whether GN 100 of 2003 meets the requirements
of section 82 (7) of the Act.
An analysis of section 82 (7) is to the effect that (1) The Minister
may approve a type of device by notice in the Gazette, (2) The
Minister may approve a device which confirms to “such
requirements, including the requirements of any standard publication
contemplated in section 94 (4), (3) In the latter event at least the
requirements of any standard requirements must be specified in that
GN 100 of 2003 states merely that the device approved must comply
with the requirements of the South African Bureau of Standards
“Standard Specification “SABS 1973: 1998 Evidential
breath testing equipment. What those requirement are is not stated.
I agree with Ndou AJ in his conclusion that any member of the public
who is charged with a contravention of section 82 (5) of the Act,
should know or be able to ascertain in Namibia whether or not the
device used complies with the requirements of SABS 1973: 1988
Evidential breath testing equipment. To hold otherwise may well
render the proceedings unfair. This consideration provides the logic
behind the enactment of section 94 (3) of the Act. It would be
anomalous to say that when the Minister publishes a regulation in
terms of section 91 of the Act to determine the method of determining
any fact which is required for the purposes of the Act, he is obliged
in the case of a standard publication to comply with section 94 (3)
of the Act, but equally he is not obliged to do so when he acts in
terms of section 82 (7) of the Act. Section 94 (4) must be read
together with section 94 (3). Both have equal application to standard
It follows from my reasoning and conclusions that GN 100 of 2003 does
not meet the requirements of section 82 (7).
Consequently the conviction and sentences imposed in each of the
cases are set aside.