Court name
High Court Main Division
Case number
CA 24 of 2013
Title

S v Heathcote (CA 24 of 2013) [2013] NAHCMD 195 (12 July 2013);

Media neutral citation
[2013] NAHCMD 195
Coram
Ndou AJ













NOT REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: CA 24/2013








In the matter between:








THE STATE
...........................................................................APPLICANT/APPELLANT








and








RAYMOND HEATHCOTE
.....................................................ACCUSED/RESPONDENT








Neutral citation:
State v Heathcote (CC 24/2013) [2013] NAHCMD 195 (12 JULY
2013)








Coram: NDOU AJ



Heard: 9 July 2013



Delivered: 12 July
2013










ORDER










1. Leave to appeal is
refused








2. The application is
hereby dismissed.


















In chambers,
application by the state for leave to appeal in terms of Section 310
of
the Criminal Procedure Act 51 of 1977.










JUDGMENT










NDOU AJ [1] .The
state applied for leave to appeal against the decision of the
Regional Magistrate of Swakopmund in terms of Section 310 (1) of the
Criminal Procedure Act 51 of 1977, as amended. The appeal is against
the decision of the Regional Magistrate declaring GN 100 of 2003,
published in terms of Section 82 (7) of the Road Traffic and
Transport Act, 1999 [Act 22 of 1999] ultra vires the
Road Traffic and Transport Act, 1999. The grounds upon which the
applicant desires to appeal are captured as follows in the Notice of
Application:








The learned
magistrate misdirected herself, alternatively erred in law and/or in
fact by declaring the notice ultra vires.









  1. Without considering
    alternatively properly considering that the matter was authorized by
    section 82 (7) [of] the Road Traffic and Transport Act, 1999 to
    issue the said notice;



  2. By finding that the
    aforesaid notice should comply with the provision of section 94 of
    the Road Traffic and Transport Act 1999;



  3. Without requiring or
    allowing any evidence on the application.”









[2] Background








The background facts of
the matter are the following:








The accused/respondent
appeared before the Regional Magistrate of Swakopmund on the main
count of driving under the influence of intoxicating liquor,
alternatively, driving with an excessive blood-alcohol level in
contravention of Section 82 (1) (a) and 82 (5) (a), respectively, of
the Road Traffic and Transport Act 22 of 1999.



[3] He pleaded not guilty
to main and alternative charges. He thereafter handed a plea
explanation in term of Section 115 of the Criminal Procedure Act,
Supra. The gravamen of his plea explanation was
that Government Notice 100 of 2003 (published in Government Gazette
2917) used by the Ministry of Works, Transport and Communications to
authorize the use of an instrument in breathalyzer test, is ultra
vires
the enabling Act and invalid. He said the state may not
rely on any evidence purportedly produced by the said breathalyzer
device used to test the alcohol levels in his breath. In the
alternative charge the Regional magistrate ruled that the Government
Notice was ultra vires for non-compliance with the provisions
of subsection (3) and (4) of section 94 of the Road Traffic and
Transport Act, supra. For the record, the ruling subject of
this application is only in connection with the alternative charge.
The Regional magistrate did not deal with the main charge and it is
thus still pending before that court. At page 99 of the record the
Regional Magistrate commented as follows: “ It is indeed so
that there is still a main charge outstanding that the court must
listen to
” (emphasis added).








[4] At the commencement
of the proceedings the state raised a point in limine on the
appearance of the respondent or his legal representative in light of
his failure to lodge a written submission in terms of Section 310 (4)
of the Criminal Procedure Act, supra. Relying on the authority
of s v Mujiwa 2007 (1) NR 34, the state submitted that because the
accused did not make use of the opportunity provided to him in terms
of section 310 (4), supra, to lodge written submissions, there cannot
be any appearance on his behalf. Mr Botes, for the respondent,
submitted inter alia, that the judgment in s v Mujiwa, supra,
was wrongly decided. I granted the respondent appearance and
indicated that the reasons for doing so will be provided in this
judgment. These are they. In arriving at the decision to grant
Respondent appearance, I did not deem it necessary to deal with the
question as whether the case of s v Mujiwa was wrongly decided. The
way I understand Mr Botes, for the Respondent, he was making an oral
application for the extension of the period on the basis that he has
shown good cause. The good cause submitted is that the record of the
proceedings was only availed to the Respondent on Friday, 5th
July 2013, ie after the matter was set down. The Respondent’s
counsel was only served with the application’s “Short
Heads of Argument” just before this hearing. The said Heads
were in fact filed of record a day before this hearing at 10H55. In
the circumstances I dealt with the matter in accordance with justice
as enshrined in the provisions of Section 310, supra and the audi
alteram partem
principle. In the circumstances of the case as I
have just highlighted it would have been unfair to close the court
doors on the Respondent. In an event I do not see any prejudice that
may be suffered by applicant if the Respondent is allowed appearance.
The Applicant has not submitted possible prejudice it may suffer if
the Respondent appears. The fact that this is not a full-scale
hearing, as stated in s v Mujiwa, supra, it within my discretion to
be flexible in the procedure to be followed. It is for that reason
that the Respondent is given the discretion to make submissions. Even
if he does not do so, the matter will still be decided on its merits
in accordance with justice. There is per se, no sanction for
such failure, with all this in mind I allowed the Respondent
appearance in the interest of justice.








[5] I now propose to deal
with the merits of the application for leave to appeal in terms of
Section 310 (1), as read with Section 310 (2), supra. The test
applicable in such an application was captured by Davis AJA in R v
Ngubane and others 1945 AD 185 at 187 in the following terms –








In all cases, no
matter what form of words were used, the same thing was, in my
opinion, intended to be conveyed, namely that it is for applicant for
special leave to satisfy the court that, if that leave be granted, he
has a reasonable prospect of success on appeal. That was the test
applied, for instance, in Bezuidenhout v Dippenaar 1943 AD at 195,
and it is, in my view, the correct one.” This test was followed
years later in S v Sikosana 1980 (4) SA 559 (A) at 561 – 3 and
S v Nowaseb 2007 (2) NR 640 (HC). The application should not be
granted if it appears to the judge that there is no reasonable
prospect of success. The judge must exercise his power judicially.








[6] Further, the mere
possibility that another court might come to a different conclusion
is not sufficient to justify the grant of leave to appeal. S v Ceaser
1977 (2) SA 348 (A) at 350. Nor is it enough that the case is fairly
arguable – R v Baloi 1949 (1) SA 523 (A). The primary
consideration for decision is whether or not there is a reasonable
prospect of success. See also R v Shafee 1952 (2) SA 484 (A). It is
also trite that when leave is granted, the leave may be limited so as
to allow only particular grounds of appeal to be advanced, or leave
may be granted generally so that all the issues may be canvassed –
R v Jantjies 1958 (2) SA 273 (A) at 275. I now proceed to apply these
legal principles to the facts of this matter. The issue here is
whether General Notice 100 of 2003, supra, was properly
promulgated. The court aquo found that it was not. This
finding has grave consequences as the state relies heavily in use of
breathalyzer test evidence in the prosecution of drunken driving
cases. In particular section 82 (7), supra, provide as follows:-








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 or which
conforms to such requirements, including the requirements of an
standard publication contemplated in Section 94 (4), as may be
specified in such notice.”








In casu, the alternative
charge, subject matter of this application, was framed under Section
82 (5), supra, so the provisions of subsections 82 (5) and 82
(6) are applicable.








[7] It is trite law that
before a law becomes effective, it must 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 1917 CPD 225,
Benator NO v Worcester Court (Pty) Ltd 1983 (4) SA 126 (C) and S V
Carracelas and others (1) 1992 NR 322 (H).



GN 100 of 2003 was
published on 30 April 2003 in the following terms:








Road Traffic and
Transport Act 1999.



The Minister of Works,
Transport and Communication has in terms of Section 82 (7) of the
Road Traffic and Transport Act, 1999 (Act Wo 22 of 1999), 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 1793: 1998 evidential breath testing equipment.”








M Amweelo



Minister of Works,



Transport and
Communication, Windhoek, 30 April 2003”



That this General Notice
does not comply with the provisions of subsections 94 (3) and 94 (4)
is, with respect, beyond dispute. What the applicant submits is that
there is no requirement for such compliance because “If the
aforesaid is understood it is abundantly clear that the prerequisites
of Section 94 (3) and (4) dealt with the chapter 11 regulation and
not the power/discretion given by the legislative to the Minister to
approve the type of device by which any breath specimen shall be
ascertained.”








[8] Strictly speaking
this submission is not what the trial prosecutor advanced during the
hearing. The essence of the applicant’s case, as presented by
the trial prosecutor, is captured as follows in pages 87 to 88 of the
record of proceedings – “Ms Ashipala [prosecutor]: ……
It is the State submission your worship that as I believe also
indicated by my leaned colleague the Minister had the authority to
make such notice or regulation to put that in the gazette and it is
the submission of the state your worship that in doing so in
exercising his authority he did not act outside the scope of his
authority. It is the submission of the state Your Worship to at
the stage say that yes he acted inside the scope of his authority but
did not do so he did not do so as per the requirements. He did not
meet the necessary requirements in doing so, in putting forth or
gazetting this Notice Your Worship or regulations in not meeting such
requirements
(intervention) Court: What you saying he did not
comply with the Act as it stipulates?



Ms Ashipala: No Your
Worship what I am saying is that he acted in his authority to put
the Notice into the Gazette to make that Notice your Worship and to
argue that in doing so acting in his authority yet not meeting the
requirements are per the Road Traffic and Transport Act, to say that
because he did not do something or omitted to follow to the letter or
all of these requirements Your Worship that now makes the Notice
ultra vires
. The state wishes to submit (intervention) Court: So
you say it is still valid although it did not meet requirements
?
Ms Ashipala: Yes Your Worship that is the argument of the state.
The fact that he did act within his authority to do so and as such as
Your Worship the state submits that for that reason the Government
Gazette or that Notice as published in the Government Gazette be
valid. Leading to the fact that the state during the cause of the
trial will be in a position to lead evidence proceed with the
alternative and lead evidence on that Your Worship. That is the
submission of the state, as the court pleases.



Court: Thank you Ms
Prosecutor in short (intervention)



Mr Botes: I will be very
short Your Worship.



Court: Okay



Mr Botes: “As I
wish to express my (indistinct) to the state in concession as he
did not comply
(indistinct) the fact, therefore having regard
to peremptory provision only
can follow one (indistinct) of
(indistinct) having regard to the circumstances (indistinct) that is
in that (indistinct) as the court pleads” (emphasis added)








[9] 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.








[10] 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.








[11] 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 access thereof?








[12] It is for that
reason that the legislature enacted Section 94 (3), supra,
requiring the Notice or Regulation to “…..state the
place 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.”
How will any citizen of Namibia know about the SABS’s
“Evidential Breath Testing Equipment” if its
incorporation by reference is dealt with surreptitiously in the
Government Notice? – S v Carracelas and Others, supra,
Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) and
President of the Republic of South Africa and another v Hugo 1997 (4)
SA 1 at 43-4. A person should be able to know of the law, and be able
to conform his or her conduct to the law. The need for accessibility,
precision and general application flow from the concept of the Rule
of law - Committee for Commonwealth of Canada v Canada (1991) 77 DLR
(4th ed.) 385. In Sunday Times v The United Kingdom (1979)
2 EHRR 245 the following remarks were made –








First, the law
must be adequately accessible: the citizen must be able to have an
indication that is adequate in the circumstances of the legal rules
applicable to a given case. Secondly, a norm cannot be regarded as a
“Law” unless it is formulated with sufficient precision
to enable the citizen to regulate his conduct: he must be able –
if need be with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail” This is what the legislature of
Namibia sought to achieve by enacting Section 94 (3) and (4).



These provisions ensure
that the public have substantive access to matters prescribed by law
in regulations made by the Minister under the Act. In the
circumstances there is no reasonable prospect of the state succeeding
on appeal.








[13] In her judgment, the
Regional Magistrate dealt with this issue in detail. There is merit
in her findings that the provisions of Section 94 (3) and (4) as read
within Article 12 of the Namibian Constitution render the Government
Notice 100 of 2003 ultra vires and invalid. The Minister of
Traffic and Transport should have just put his house in order in
light of the possible number of offenders prosecuted using this
evidence of the breathalyzer test acquired in a flawed manner. All
hope is not, in any event, lost, as the prosecution in main charge
can still be pursued without the aid and convenience of the
breathalyzer device. The Minister can easily regularize the position
by publishing another Notice in compliance with the relevant
statutory provisions. Whichever way one looks at this matter, the
state has no reasonable prospect of success on appeal. Accordingly,
leave to appeal is refused and the application is hereby dismissed.








----------------------------------



N N Ndou



Acting Judge













APPEARANCES








STATE : MR SMALL



Of the Office of
Prosecutor General, Windhoek








ACCUSED: MR BOTES



Instructed by Theunissen
Law & Parnters



Windhoek