Court name
High Court Main Division
Case number
APPEAL 416 of 2013
Case name
Florin v Minister of Safety And Security and Others
Media neutral citation
[2013] NAHCMD 383
Judge
Geier J










REPUBLIC
OF NAMIBIA




HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT



Case
no: A 416/2013





DATE:
05 DECEMBER 2013








In
the matter between:








THOMAS
ADOLF
FLORIN................................................................................APPLICANT





And





THE
MINISTER OF SAFETY AND SECURITY..............................1ST
RESPONDENT





THE
HEAD OF THE WINDHOEK CENTRAL PRISON..............2ND
RESPONDENT





THE
CHAIRPERSON OF THE PAROLE BOARD........................3RD
RESPONDENT





Neutral
citation: Florin v The Minister of Safety and Security (A 416/2013)
[2013] NAHCMD 383 (05 December 2013)








Coram: GEIER
J





Heard: 28
November 2013





Delivered: 05
December 2013





Release
date: 29 January 2014





Flynote:
Practice - Plea - Lis pendens – Applicant’s urgent
application stayed pending the determination of a similar application
between the same parties and based on the same cause of action
already pending before another judge in the same court -





Summary:
The applicant – who is currently serving a sentence of life
imprisonment for the murder of his wife - brought an urgent
application after nearly having served 14 years of his life sentence
for the review and setting aside the decision by the respondents not
to consider the applicant for release on probation before the lapse
of not less than 15 years imprisonment and an order directing the
respondents’ to consider the applicant for release on probation
as a matter of urgency – at the time of sentencing the trial
judge had recommended that the applicant not be released on probation
before the lapse of not less than fifteen (15) years imprisonment
calculated from the 22nd December 1999.





The
application was based on a pre- independence cabinet resolution,
number 1177 of 1986, which was based on the now repealed Prison’s
Act, Act No 8 of 1959 allegedly still utilised by the Correctional
Services as the applicable parole policy when considering the
eligibility of inmates sentenced to life for release on parole -.





In
terms of the said resolution/policy, a sentence of life imprisonment,
for administrative purposes, is considered to be a minimum of 20
years. A prisoner serving a sentence of life can thus be considered
for release on parole after having served half of 20 years, i.e.
after having served 10 years.





The
applicant enquired from time to time about the possibility of parole.
His enquiries were made after the first 10 years of the sentence had
been served. To date he has not been considered for parole and the
replies received from time to time from the prison authorities were
to the effect that he could only be so considered after the expiry of
15 years, as recommended by the trial judge. Accordingly he was now
seeking to review these decisions and to be considered for parole –





The
application was opposed on a number of grounds – the
respondents also disputed the validity of the relied upon parole
policy – inter alia raising the defence of lis alibi pendens.





Fundamental
to the applicant’s case - and its success or failure - is the
validity or not of the parole policy as adopted in 1986. As that
pivotal issue is presently pending before another Court between the
same parties the court upheld the respondent’s plea of lis
pendens -








ORDER








1.
The present application brought under case A 416-2013 be stayed
pending the determination of case A 240-2013.



2.
The applicant is ordered to pay the resulting costs, such cost to
include the cost of the engagement of two legal practitioners.








JUDGMENT








GEIER
J:





[1]
The applicant was sentenced to life imprisonment for the murder of
his wife Monica.





[2]
He was also convicted and sentenced in respect of a number of lesser
counts.





[3]
The Trial Judge, inter alia, in motivation of sentence had this to
say:





Needless
to say that you have committed a very serious and gruesome murder on
an unsuspecting and helpless person. There wasn’t any sudden
and gross provocation causing you to react in the heat of the moment.
The motive for the murder was not so much sexual jealously on your
part, but the custody and control of your children. In any evident,
the evidence has shown that there was not much of a marital
relationship left between the two of you as a couple. The deceased
somehow despised and ridiculed you for being unemployed and without a
fixed income. After the breakdown of your marital relationship and
having found a new lover the deceased had no intention of returning
to Germany, nor to part with her children. As you had to return to
Germany, because of the cancellation of your residence permit you
unscrupulously schemed to physically eliminate the deceased and even
fixed the day she would disappear, i.e. be killed. When the day and
time arrived you stalked the deceased and smashed her skull while she
was in all probabilities asleep. Thereafter you removed the flash
from the bones and together with the internal organs discarded these.
Then you cooked the skeletal remains to minimize the rotting and
concealed them in the ceiling of your dwelling. This was a selfish
and senseless murder because it was totally unnecessary as there were
other possible civil remedies to the custody issue of the children to
pursue than the extreme action you resorted to. Your professed love
for your children caused you to deprive them of the love and
affection of their mother for the rest of their natural lives. I can
only wonder how you would explain to them what you have done to their
mother when they are grown-ups. Whether or not they would forgive
you is not for me, but providence to tell. I hold sacred the belief
that partners in a love relationship should part ways not necessary
in love and affection with which they entered into the relationship,
but surely with respect and dignity.





The
society abhors and resents what you have done to the Deceased. I
have been reminded by your Counsel not to be swayed by the national
and international media publicity the matter enjoyed. It is true
that I should guard against undue influence emanating from outside
pressures. However, one cannot turn a blind eye and deaf ear to the
cries of society about not only the prevalence of violent crimes
against women, but also against young children, lest they lose
confidence in the administration of justice and resort to taking the
law into their own hands meeting out unsanctioned punishment. The
society is entitled to the protection of these courts by the
imposition of severe sentences in appropriate instances when called
upon to do so. Failure to do so would amount to dereliction of a
judicial duty’.1





[4]
After considering in the remaining factors pertaining to sentence the
learned Judge concluded:





In
the result convict, Thomas Adolf Florin, I sentence you for the
murder of Monica Florin to life imprisonment in respect of the first
Count;


Count’s
2 and 3 are taken together and I sentence you to two (2) months
imprisonment; counts 6 and 7, each one (1) month imprisonment; and
count 6 and 8, two (2) months imprisonment.


That
is your Sentence.


I
recommend to the prison authorities that you ought not to be released
on probation before the lapse of not less than fifteen (15) years
imprisonment calculated from today the 22nd December 1999.’





[5]
The applicant has now, after nearly serving 14 years of his life
sentence, approached this court on an urgent basis for relief in the
following terms:





1.
Condoning applicant’s none compliance with the Rules of this
Honourable Court and hearing the application for the relief set out
below on an urgent basis as is provided for in Rule 6 (24) of the
Rules of the High Court Rules and in particular but not limited to
condoning the abridgement of time periods and dispensing, as far may
be necessary, with the forms and service provided for in the Rules of
this Honourable Court;





2.
Reviewing and setting aside the decision by the respondents not to
consider the applicant for release on probation before the lapse of
not less than 15 years imprisonment;





3.
Ordering and directing the respondents’ to consider the
applicant for release on probation as a matter of urgency;





4.
Ordering the respondents’ to pay the cost of this application
jointly and severally, the one paying the other to be absolved;





5.
Further and/or alternative relief.





[6]
Underpinning the applicant’s quest to be considered for parole
and to possibly be released on probation is a pre- independence
cabinet resolution, number 1177 of 1986, which was based on the now
repealed Prison’s Act, Act No 8 of 1959.





[7]
The applicant alleges that Namibia’s Correctional Services
still utilize this parole policy when considering the eligibility of
inmates for release on parole, that is for inmates, sentenced to
life.





[8]
In terms of paragraph 3.4.3.1 (h)(i) of the said resolution/policy, a
sentence of life imprisonment, for administrative purposes, is
considered to be a minimum of 20 years. A prisoner serving a
sentence of life can thus be considered for release on parole after
having served half of 20 years, i.e. after having served 10 years.





[9]
The applicant enquired from time to time about the possibility of
parole. His enquiries were made after the first 10 years of the
sentence had been served. These enquiries were made, so the
applicant explains, because he understood a sentence of life to mean
20 years and that he could be considered for release on probation
after 10.





[10]
To date he has not been considered for parole and the replies
received from time to time from the prison authorities were to the
effect that he could only be so considered after the expiry of 15
years, as recommended by the trial Judge.





[11]
On 31 October 2013 the applicant met his current counsel, Mr Rukoro,
who had been instructed to act on behalf of all prisoners serving a
sentence of life in Namibia in an application for a declaratory order
that a sentence of life, for administrative purposes, should be
regarded as a term of 20 years imprisonment, as per the said policy.
I will revert to this aspect.





[12]
Counsel apparently advised the applicant that he would not benefit
from the declarator sought as his case was different.





[13]
In further support of the relief sought, applicant also contended
that the recommendations made by the trial Judge should merely be
regarded as one of a multitude of factors which should be considered
in the decision to recommend him for possible release on parole ‘as
the trial courts involvement ended at sentencing, where after it is
for the correctional authorities to deal with the issues of
incarceration, discipline and parole’.





[14]
The applicant then also advanced reasons as to why he should be
considered for parole alleging that he can show good prospects in
this regard.





[15]
The matter was urgent, so it was contended further, as the
respondents were violating his rights and as the applicant’s
mother, who is now terminally ill, and the applicant himself are not
in good health.





[16]
In answer, the head of the Windhoek Central Prison alleged that ‘the
applicant had entered a legal terrain without proper legal
reconnaissance and survey as a result of which his application was
misguided and had not merit.’ Inter alia, the following legal
objections/defences were then raised on behalf of respondents:





1.
That that 3rd respondent, the Chairperson of the Parole Board, was a
non-existent functionary, as the current Prison’s Act, Act No
17 of 1998, does not create a Parole Board, with a Chairperson that
could be cited in legal proceedings;





2.
That the aspect of parole and probation was no longer governed by the
1959 Prison’s Act, but by Sections 95(1)(a) and (b) and (2) of
the 1998 Act, in terms of which it would appear that the section does
not apply to prisoner’s sentenced to life and that such person
could only be reprieved by way of presidential pardon in terms of
Section 93;





3
That in any event Section 126 of the 1998 Act limited the bringing of
any action in respect of anything done or omitted in pursuance of the
1998 Act to one year and after notice in writing had been given of
any such intended action at least one month before the commencement
thereof, and as this was not done and that the applicant’s
application, which should have been brought some four years ago, was
time barred;





5.
That in any event the application was not urgent, as the urgency of
this matter had been self-created;





6.
That the applicant was part of a pending application instituted under
case number A 240/2013 - in which the applicant was listed as the
sixth applicant - and that the present application was thus barred by
the principles of lis alibi pendens;





7.
That the relief sought by applicant was in any event incompetent if
regard was had to the scheme and structure created by the 1998
Prison’s Act and in terms of which and in terms of Section 95,
the kick- starter to the parole and probation process was the
Institutional Committee, whose Chairperson had not been cited in
these proceedings.’





[17]
During oral argument Mr Rukoro, who appeared on behalf of the
applicant, submitted that his client’s case for urgency was
simple. His client was advised and did not know better until 31
October 2013 that he did not have to await the effluxion of 15 years
before he could be considered for parole or probation as the trial
Judge’s recommendation did according to the advice received not
constitute part of the sentence. The cause for urgency arose at the
moment that he received such advice. The applicant then reacted to
such advice, according to Mr Rukoro, with reasonable promptitude.





[18]
Mr Namandje, who appeared on behalf of the respondents with Mr
Ntinda, did not hotly contest the issue of urgency and merely relied
on the averments made in answer and on his Heads of Argument that the
urgency of this matter was self-created.





[19]
I will accept for purposes of determining the point of urgency that
the applicant did not know better until he received advice in this
regard on 31 October 2013, although this is doubtful given his
participation in case A 240/2013. Accordingly I will exercise my
discretion in favour of the applicant and hear this matter on an
urgent basis, because the underlying issue at hand, in any event, is
an important one which requires determination sooner rather than
later.





[20]
In this regard sight should not be lost of what the Supreme Court has
said in S v Tcoeib 1991 NR 24 (SC), when it considered the
constitutionality of a life sentence:





Even
when it is permitted in civilised countries it is resorted to only in
extreme cases either because society legitimately needs to be
protected against the risk of a repetition of such conduct by the
offender in the future or because the offence committed by the
offender is so monstrous in its gravity as to legitimise the extreme
degree of disapprobation which the community seeks to express through
such a sentence. These ideas were expressed by the Court in the case
of Thynne, Wilson and Gunnell v The United Kingdom, 2
where it stated that:





'Life
sentences are imposed in circumstances where the offence is so grave
that even if there is little risk of repetition it merits such a
severe, condign sentence and life sentences are also imposed where
the public require protection and must have protection even though
the gravity of the offence may not be so serious because there is a
very real risk of repetition. . .'


But,
however relevant such considerations may be, there is no escape from
the conclusion that an order deliberately incarcerating a citizen for
the rest of his or her natural life severely impacts upon much of
what is central to the enjoyment of life itself in any civilised
community and can therefore only be upheld if it is demonstrably
justified. In my view, it cannot be justified if it effectively
amounts to a sentence which locks the gates of the prison
irreversibly for the offender without any prospect whatever of any
lawful escape from that condition for the rest of his or her natural
life and regardless of any circumstances which might subsequently
arise. Such circumstances might include sociological and
psychological re-evaluation of the character of the offender which
might destroy the previous fear that his or her release after a few
years might endanger the safety of others or evidence which might
otherwise show that the offender has reached such an advanced age or
become so infirm and sick or so repentant about his or her past, that
continuous incarceration of the offender at State expense constitutes
a cruelty which can no longer be defended in the public interest. To
insist, therefore, that regardless of the circumstances, an offender
should always spend the rest of his natural life in incarceration is
to express despair about his future and to legitimately induce within
the mind and the soul of the offender also a feeling of such despair
and helplessness. Such a culture of mutually sustaining despair
appears to me to be inconsistent with the deeply humane values
articulated in the preamble and the text of the Namibian Constitution
which so eloquently portrays the vision of a caring and compassionate
democracy determined to liberate itself from the cruelty, the
repression, the pain and the shame of its racist and colonial past.3
Those values require the organs of that society continuously and
consistently to care for the condition of its prisoners, to seek to
manifest concern for, to reform and rehabilitate those prisoners
during incarceration and concomitantly to induce in them a
consciousness of their dignity, a belief in their worthiness and hope
in their future. It is these concerns which influenced the German
Federal Court in 'the life imprisonment case'4
to hold, inter alia, that





'the
essence of human dignity is attacked if the prisoner, notwithstanding
his personal development, must abandon any hope of ever regaining his
freedom'.


The
German Federal Court in that matter also referred to the German
Prison Act in this context and stated:



'The
threat of life imprisonment is contemplated, as is constitutionally
required, by meaningful treatment of the prisoner. The prison
institutions also have the duty in the case of prisoners sentenced to
life imprisonment, to strive towards their resocialisation, to
preserve their ability to cope with life and to counteract the
negative effects of incarceration and destructive personality changes
which go with it. The task which is involved here is based on the
Constitution and can be deduced from the guarantee of the
inviolability of human dignity contained in article 1(1) of the
Grundgesetz.'


It
seems to me that the sentence of life imprisonment in Namibia can
therefore not be constitutionally sustainable if it effectively
amounts to an order throwing the prisoner into a cell for the rest of
the prisoner's natural life as if he was a 'thing' instead of a
person without any continuing duty to respect his dignity (which
would include his right not to live in despair and helplessness and
without any hope of release, regardless of the circumstances).


The
crucial issue is whether this is indeed the effect of a sentence of
life imprisonment in Namibia. I am not satisfied that it is.


Section
2(b) of the Prisons Act expressly identifies the treatment of
convicted prisoners with the object of their reformation and
rehabilitation as a function of the Prison Service and s 61 as read
with s 5bis provides a mechanism for the appointment of an
institutional committee with the duty to make recommendations
pertaining to the training and treatment of prisoners upon whom a
life sentence has been imposed. Section 61bis as read with s 5 of
that Act creates machinery for the appointment of a release board
which may make recommendations for the release of prisoners on
probation and s 64 (as amended) inter alia empowers the President of
Namibia acting on the recommendation of the release boards to
authorise the release of prisoners sentenced to life and there are
similar mechanisms for release provided in s 67. It therefore cannot
properly be said that a person sentenced to life imprisonment is
effectively abandoned as a 'thing' without any residual dignity and
without affording such prisoner any hope of ever escaping from a
condition of helpless and perpetual incarceration for the rest of his
or her natural life. The hope of release is inherent in the statutory
mechanisms. The realisation of that hope depends not only on the
efforts of the prison authorities but also on the sentenced offender
himself. He can, by his own responses to the rehabilitatory efforts
of the authorities, by the development and expansion of his own
potential and his dignity and by the reconstruction and realisation
of his own potential and personality, retain and enhance his dignity
and enrich his prospects of liberation from what is undoubtedly a
humiliating and punishing condition but not a condition inherently or
inevitably irreversible.’ 5





[21]
It so appears that the constitutionality of life imprisonment was
considered by the Supreme Court and the Learned Chief Justice against
the backdrop of the now repealed Prison’s Act, Act No 8 of
1959, as amended by Act 13 of 1981 (SWA) and in terms of which the
mechanisms pertaining to the release of prisoners sentenced to life
on parole or probation were regulated. It was the hope of release,
inherent in these statutory provisions of the repealed legislation,
which rescued the sentence of life imprisonment from constitutional
sanction.





[22]
The applicant’s bid to be considered for parole or probation
has now exposed that Section 95 of the current Prison’s Act
1998 poses a problem in this regard in its current form. Section 95
provides:





95
Parole or probation of prisoners serving imprisonment of three years
and more


(1)
Where-



(a)
a convicted prisoner who has been sentenced to a term of imprisonment
of three years or more has served half of such term; and





(b)
the relevant institutional committee is satisfied that such prisoner
has displayed meritorious conduct, self discipline, responsibility
and industry during the period referred to in paragraph (a),


that
institutional committee may submit a report in respect of such
prisoner to the National Release Board, in which it recommends that
such prisoner be released on parole or probation and the conditions
relating to such release as it may deem necessary.’





(2)
The National Release Board may, after considering the report and
recommendations referred to in subsection (1) submit a report to the
Minister recommending the release on parole or probation of the
prisoner concerned and the conditions relating to such release as the
National Release Board may deem necessary.’





[23]
The interpretation and application of this section in regard to
prisoners serving fixed periods of imprisonment, expressed in a
number of years, is simple enough as it is easy to determine when any
such convicted prisoner has served more than half such term.





[24]
The same cannot be said for prisoners serving a life sentence and in
respect of which - and in the absence of any administrative
regulation, in this regard - it is impossible to determine when such
convicted prisoner has served half of such term and when such convict
can thus be considered by the Institutional Committee for a
recommendation to be released on parole or probation by the National
Release Board.





[25]
It is in this context that the 1986 cabinet resolution allegedly
plays a pivotal role as it is seemingly still applied.





[26]
It is however precisely this policy, the validity of which is in
dispute in these proceedings and which issue also forms the subject
matter of another court case, pending before another judge in this
court, in which the applicant is also a party. I will revert to this
aspect below.





[27]
Underpinning the applicant’s quest for urgent relief in this
matter is this disputed cabinet resolution which has formulated the
relied upon policy regarding the possible admission of prisoners
sentenced to life to parole. It must be clear that if that policy is
ruled to be invalid for any reason whatsoever in the proceedings
pending before another court, the legal basis for the relief sought
by applicant in this case will fall away. It is only a possible
declaration of validity and the applicability of that policy to
applicant that would found this application.





[28]
By that same token the respondents’ time- bar plea, based on
the provisions of Section 126 of the 1998 Prisons Act, would also
hinge on this declaration of validity sought before another Court.





[29]
To be more precise: if the cabinet resolution and the policy for the
release on parole of life sentenced prisoners will be declared to be
invalid, the argument that the applicant should have brought this
application some four years ago i.e after the elapse of 10 years will
fall away, as the new Prisons Act does not set any period of time
after which a prisoner sentenced to life can be considered for parole
or probation.





[30]
It has thus become clear that, in such circumstances prisoners
sentenced to life imprisonment only hope for release would be the
‘presidential pardon or reprieve’ in terms of Section 93
of the 1998 Prison’s Act.





[31]
Whether or not these new statutory mechanisms can ultimately be
constitutionally justified – and - whether or not they have
effectively closed the gates of prison irreversibly to prisoners
serving a sentence of life, thereby removing from such inmates the
hope of release - particularly in the absence of any regulation of
what half of a life sentence for purposes of administering the
provisions of Section 95 is to mean - and whether or not thus the
scheme created by the 1998 Prison’s Act ultimately passes
constitutional muster - is of course not for me to determine in these
proceedings in which no constitutional challenge in respect of the
provisions of the 1998 Prisons Act has been mounted.





[32]
Fundamental to the applicant’s case - and its success or
failure - is the validity or not of the parole policy as adopted in
1986.





[33]
It will already have been noted that this issue is presently pending
before another Court.





[34]
Although Mr Rukoro has indicated that the applicant considers- and
might withdraw from these proceedings, this has not occurred.





[35]
Accordingly I deem it apposite to determine the defence of lis
pendens next.





[36]
In order to successfully raise this objection it must be shown that
there is an action or application pending between the same parties,
which raises the same issues, which arise from the same cause of
action and is in respect of the same subject matter, although it does
not have to be exactly identical. 6





[37]
In this regard respondents refer to the other pending application in
this court under case number A240/2013. A case originally brought by
one Steve ‘Ricco’ Kamuhere and in which the applicant is
cited as the 6th applicant.





[38]
The 1st respondent in that case is the Minister of Safety and
Security also the 1st respondent in this instance. The 3rd
respondent to case A240-2013 is the Officer in Charge of the Windhoek
Central Prison, the 2nd respondent in this instance.





[39]
Mr Rukoro has conceded that the 3rd respondent in this instance is
non-existent.





[40]
It becomes clear that both applications are pending between
essentially the same parties.





[41]
In order to determine whether the pending proceedings are also based
on the same cause of action and in respect of the same subject matter
it is necessary to have regard to the recent Notice of Amendment
which the applicants - in case A240-2013 - delivered on 17 October
2013 – and - in terms of which, Prayers 1, 2 and 3, of the
existing Notice of Motion, were amended as follows and from which it
appears that the following relief is now sought and case A240-2013 :





1.
An Order declaring 20 years to be the maximum term of imprisonment
for any offender sentenced to life imprisonment.





2.
An Order declaring 10 years to be the minimum period of imprisonment
any offender sentenced to life imprisonment should serve before
becoming eligible for parole.





3.
An Order directing the respondents to consider any offender sentenced
to life imprisonment and who served a period of 10 years or more of
such life sentence for parole in terms of the Prison’s Act and
applicable regulations.’





[42]
By comparison - and as per the Notice of Motion in this case - case
A416/2013 - the applicant tellingly also seeks an order directing the
respondents to consider the applicant for release on probation as a
matter of urgency. (It is so that the applicant also seeks urgent
review relief.)





[43]
In order to determine whether the two applications are identical in
form and whether or not the same cause of action is involved, one
will have to consider whether or not the determination of the same
underlying point of law is involved.





[44]
I have already mentioned that the central underlying issue - to any
review relief and any order directing respondents to consider the
applicant for release on probation - is the underlying parole policy
formulated in 1986 by Cabinet Resolution 1177.





[45]
It appears from the supporting affidavit deposed to by ‘Steve
‘Ricco’ Kamuhere, in case A240/2013, that it is there
alleged that the respondents have failed to comply with the parole
policy of Cabinet Resolution 1177 of 1986, etc. - hence the prayer
for the declaratory relief and the consequent prayer to be considered
for parole in that case.





[46]
It emerges that the pending proceedings are essentially based on the
same cause of action i.e. are based on the rights flowing from the
Cabinet Resolution 1177 of 1986, which right has been placed in issue
in both proceedings.





[47]
The requirements of the defence of lis alibi pendens have accordingly
been established.





[48]
What remains is the consideration of whether or not I should exercise
my discretion to stay these proceedings pending the decision in case
A240/2013 or not.7





[49]
To me the dictates of logic and of pragmatism determine this issue.





[50]
It is clear that the applicant’s case will ultimately stand or
fall with the outcome of the declaratory relief sought in the
proceedings which are pending in case A240/2013.





[51]
Whether or not the refusal to consider applicant for parole is liable
for review also hinges on this determination.





[52]
The further conduct in these proceedings will obviously be determined
by the outcome of the relief sought in case A240/2013.





[53]
It is for these reasons that I consider it in the interest of justice
to uphold the special plea of lis alibi pendens.





[54]
In the result I order that:





1.
The present application brought under case A 416/2013 be stayed
pending the determination of case A 240/2013.



2.
The applicant is ordered to pay the resultant costs, such cost to
include the cost of the engagement of two legal practitioners.











H
GEIER





Judge





APPEARANCES





APPLICANT:
S Rukoro




Instructed
by: GF Köpplinger Legal Practitioners,


Windhoek.





1st
and 2nd RESPONDENTS: S Namandje





Instructed
by: Government Attorney, Windhoek






1Per
Teek J, (as he then was) in The State v Thomas Adolf Florin Case CC
120/1999 delivered on 22.12.1999




2EHRR
666, See also
S
v Letsolo

1970 (3) SA 476 (A);
S
v Mdau

1991 (1) SA 169 (A)




3S
v Acheson
1991
(2) SA 805 (Nm) at 813 A – C;
Government
of the Republic of Namibia and Another v Cultura 2000 and Another

1994 (1) SA 407 (NmS) at 411C – 412D




445
BverfGE 187




5At
32D – 34D




6See
for instance :
Jacobson
and Another v Machado

1992 NR 159 (HC) at p162 - p163;
Kalipi
v Hochobeb –
High
Court case (A 65/2012) [2013] NAHCMD 142 (30 May 2013) reported on
the
Saflii
web-site

at http://www.saflii.org/na/cases/NAHCMD/2013/142.html

at para [30]




7See
for instance :
Ex
Parte Momentum Group Ltd and Another

2007 (2) NR 453 (HC) at 462 H - I