Court name
High Court Main Division
Case name
Kamahere and Others v Government of the Republic of Namibia and Others
Media neutral citation
[2014] NAHCMD 209
Judge
Parker AJ










REPUBLIC OF
NAMIBIA




HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: A 58/2014





DATE:
10 JULY 2014





REPORTABLE





In the matter
between:





STEVE “RICCO”
KAMAHERE AND 25
OTHERS..............................................APPLICANTS





And





THE GOVERNMENT OF
THE REPUBLIC OF NAMIBIA......................FIRST
RESPONDENT





SPEAKER OF THE
NATIONAL ASSEMBLY
SECOND......................................RESPONDENT





CHAIRPERSON OF
THE NATIONAL COUNCIL.................................THIRD
RESPONDENT





MINISTER OF
SAFETY AND SECURITY...........................................FOURTH
RESPONDENT





COMMISSIONER
GENERAL OF PRISONS.........................................FIFTH
RESPONDENT





THE HEAD OF
WINDHOEK CENTRAL PRISON................................SIXTH
RESPONDENT





NATIONAL RELEASE
BOARD.....................................................SEVENTH
RESPONDENT





THE CHAIRPERSON
OF THE INSTITUTIONAL


COMMITTEE...................................................................................EIGHTH
RESPONDENT





Neutral citation:
Kamahere v The Government of the Republic of Namibia (A 58/2014)
[2014] NAHCMD 209 (10 July 2014)





Coram: PARKER AJ





Heard: 17 June
2014





Delivered: 10
July 2014





Flynote: Practice
– Declaratory orders – Power of the court to grant
governed by s 16 of High Court Act 16 of 1990 – Court finding
that the applicants have failed to establish a right which the court
may protect – Consequently, court exercised its discretion
against granting the declaratory orders sought.





Summary:
Practice – Declaratory orders – Power of the court to
grant declaratory orders governed by s 16 of the High Court Act 16 of
1990 – Applicants who are serving sentence of life imprisonment
relied on two repealed laws and a Colonial Cabinet Memorandum for
relief – Court found that the applicants did not pursue their
right under the Prisons Act 8 of 1959 that was repealed by the
Prisons Act 17 of 1998 or under Act 17 of 1998 which in turn has been
repealed by the Correctional Service Act 9 of 2012 – Court
found that enjoyment of the applicants’ rights was subject to
similar limitation provisions provided in Act 8 of 1959 and Act 17 of
1998 – Court found that the applicants had not exercised their
rights upon the repeal of the Acts and therefore the limitation
provisions in Act 8 of 1959 had upon coming into operation of Act 17
of 1998 rendered those rights non-existent and the limitation
provisions in Act 17 of 1998 had upon coming into operation of Act 9
of 2012 rendered non-existent the rights under Act 17 of 1998 –
Consequently, court concluded that upon coming into operation of Act
17 of 1998 and Act 9 of 2012 no rights accrued within the meaning of
s 11(2)(c) of Proclamation 2 of 1928 which the court may protect in
the instant proceeding – Furthermore, court found that the
colonial Cabinet Memorandum was not a delegated legislation which may
bind the Government of Republic of Namibia upon the application of
art 140(1) of the Namibian Constitution – It was also not a
Government Policy and the fact that the Cabinet Memorandum was
applied by some administrative bodies or officials was irrelevant –
Court held that an act of an administrative body or administrative
official which is done in not conformity with legislation, delegated
legislation or a lawful Government policy does not bind any person or
the court.








ORDER








The application is
dismissed with costs.








JUDGMENT








PARKER AJ:





[1] The applicants
have brought the present application on notice of motion and they
seek relief in terms set out in the notice of motion. The applicants
are Steve Ricco Kamahere and 25 others. The names of all the
applicants are listed in ‘Annexure 1’ to the founding
affidavit.





[2] The respondents
moved to reject the application and raised some points in limine. The
points in limine were not pursued by Mr Namandje, counsel for the
respondents, during the hearing of the application. I understand it
to mean that the respondents abandoned the points in limine except
the one on mandamus. In any case, in my opinion the issue of mandamus
goes to the merit of the application. In effect, only the points in
limine relating to the 22nd applicant, Thomas Adolf Florin, and the
point in limine on the ‘non-joinder of the President’
were abandoned.





[3] In para 7 of the
relief sought by the applicants in the notice of motion, the
applicants, in the alternative to paras 3 and 4 of the notice of
motion, sought ‘an order declaring Section 95 of the Prisons
Act, 17 of 1998 to be unconstitutional’. This relief was not
argued by Mr Rukoro, counsel for the applicants, during the hearing
of the application. I take it that that alternative relief was
abandoned by the applicants.





[4] I now proceed to
determine the application on the merits in respect of paras 1, 2, 3,
4, 5 and 6 of the notice of motion.





Prayer 1: An order
declaring 20 years to be the maximum term of imprisonment for any
offender sentenced to life imprisonment in terms of the Prisons Act 8
of 1959.





Prayer 2: An order
declaring 10 years to be the minimum period of imprisonment any
offender sentenced to life imprisonment in terms of the Prisons Act
No. 8 of 1959 should serve becoming eligible for parole.





[5] The first stop
in the present enquiry is the repealed Correctional Service Act 8 of
1959 (whose amendments were referred to as the Prisons Amendment
Acts) was on the statute books before its repeal, and was at times
referred to as the Prisons Act. Section 65 of Act 8 of 1959 provided
for the release of prisoners and placement of prisoners on parole.
Subsection 4(a) of s 65 concerned, among other things, prisoners
serving a determinate sentence, and subsec 4(b) concerned, among
other things, periodical imprisonment and imprisonment for corrective
training. Act 8 of 1959 did not prescribe any minimum or maximum
period which a prisoner who had been sentenced to life imprisonment
should serve before he or she was eligible to be considered for
release on parole.





[6] I, therefore,
find that the applicants’ contention that ‘[U]nder the
Prisons Act No. 8 of 1958 life imprisonment meant a jail terms of
minimum of 20 years and a person sentenced to life imprisonment in
terms thereof was required to spend 10 years in jail before becoming
eligible for parole’ has no legal basis. The relief should fail
on this basis alone.





[7] In any case,
those applicants who allege that an act was done or omitted to be
done in pursuit of a right they allege they had under the repealed
Act 8 of 1959 can have no redress now under that repealed Act, read
with the Interpretation of Laws Proclamation 2 of 1928, as I
demonstrate. There is a limitation clause in s 90 to the effect that
-





‘(1) No civil
action against the State or any person for anything done or omitted
in pursuance of any provision of this Act shall be commenced after
the expiration of six months immediately succeeding the act or
omission complained of, or in the case of a prisoner, after the
expiration of six months immediately succeeding the date of his
release from prison, but in no case shall any such action be
commenced after the expiration of one year from the date of the act
or omission complained of.





(2) Notice in
writing of every such action, stating the cause thereof and the
details of the claim, shall be given to the defendant one month at
least before the commencement of the action.’





[8] Doubtless, the
six months’ or the one year’s time limits have long
expired and no such action was instituted and no such notice of such
action was given; and what is more, Act 8 of 1959 had long been
repealed in whole by Act 17 of 1998 which in turn has also been
repealed by Act 9 of 2012. It follows that even assuming – for
argument’s sake – some of the applicants had some right
under the 1959 Act, the enjoyment of that right was inextricably
subjected to the limitation provision under Act 8 of 1959. And if
those applicants did not exercise that right by instituting action
against the State within the statutory time limits, it cannot
seriously be argued – as Mr Rukoro appears to do – that
in March 2014 that right still existed in virtue of Proclamation 2 of
1928.





[9] When Act 17 of
1998 came into operation, repealing in whole Act 8 of 1959, those
applicants could not have had ‘any right … accrued under
(the) any law so repealed’ within the meaning of s 11(2)(c) of
Proclamation 2 of 1928. Indeed, as s 11(2)(a) of that Proclamation
provides, where a law repeals any other law the repeal ‘shall
not revive anything not in force or existing at the time at which the
repeal takes place.…’





[10] These reasoning
and conclusions apply with equal force to those applicants who claim
rights under Act 17 of 1998 which contains a similar limitation
clause in s 126 of that Act. Accordingly, I accept Mr Namandje’s
submission on the point. The 1959 Act and the 1998 Act, read with the
Proclamation 2 of 1928, cannot assist the applicants. Their
contention is singularly lacking on the merits in relation to these
two repealed statutes.





[11] But that is not
the end of the matter. The applicants have a second string to their
bow. It is this. The applicants appear to rely on what they refer to
as ‘Cabinet Directive under File Number 10/8/B, dated 4 August
1986’, and the applicants annex a copy of the document to the
founding affidavit (marked ‘A2’). They refer specifically
to para 3.1.3.1(h) of Annexure 2.





[12] In my view, the
applicants’ reliance on Annexure ‘A2’ is equally
misplaced. Annexure ‘A2’ is not a Cabinet Policy of a
pre-Independence Government: it is rather a Cabinet Memorandum of
that age. It is a submission of a recommendation by the then
Department of Justice (Directorate of Prisons) to the Cabinet of the
day. The memorandum contained proposals in para 3 thereof where the
Department of Justice recommended to Cabinet to consider and approve.
See para 1 of the memorandum which reads:





‘1. OBJECTIVE





In order to inform
you of the various ways to release prisoners prior to the expiry of
their sentences and to furnish you with a policy regarding parole for
consideration and approval.…’





(Italicized for
emphasis). In this regard, see also para 7 of the memorandum which is
significantly entitled ‘RECOMMENDATION’, and the text
reads:





‘That-





The parole policy as
set out in paragraph 3 be approved.





COLONEL





COMMISSIONER OF
PRISONS





Comment of the
Secretary of Justice:





In general I
agree with the statements and recommendations contained in this
memorandum.’





(Italicized for
emphasis).





[13] It is clear
that Annex ‘2’ was a Cabinet Memorandum and not a Cabinet
Policy; and, a fortiori, the Cabinet Memorandum was never a delegated
legislation, having legislative effect, in which case art 140(1) of
the Namibian Constitution would have applied. For these reasons, Mr
Rukoro’s argument that it did not matter whether Annex ‘2’
was called a Directive or a Memorandum cannot, with respect, take the
applicants’ case any further. With the greatest deference to Mr
Rukoro, that argument carries no weight. The irrefragable and
relevant fact is that Annex ‘2’ was neither a
Cabinet-made policy nor delegated legislation.





[14] In my view,
therefore, Act 8 of 1959 did not provide that life imprisonment meant
a 20 years’ imprisonment or that a prisoner who was sentenced
to life imprisonment was entitled to be considered for release on
parole after he or she has served a minimum term of ten years in
prison. It is with firm confidence, therefore, that I hold that Act 8
of 1959 and the Cabinet Memorandum (Annexure ‘2’) cannot
for these reasoning and conclusions assist the applicants.
Accordingly, prayers 1 and 2 fail; and they are rejected.





Prayer 3: An order
declaring 20 years to be the maximum term of imprisonment for any
offender sentenced to life imprisonment in terms of the Prisons Act
17 of 1998.





Prayer 4: An order
declaring to be minimum period of imprisonment any offender sentenced
to life imprisonment in terms of the Prisons Act No. 17 of 1998
should serve before becoming eligible for parole.





[15] The provisions
in Act No. 17 of 1998 which dealt with parole (or probation) were in
s 95(1) and (2) of that Act. And, significantly, those provisions did
not concern prisoners serving imprisonment for life. It is,
therefore, not surprising that the regulations made by the Minister
of Prisons and Correctional Services and published in the Government
Gazette under Government Notice No. 226 of 8 November 2001 had no
provision respecting a minimum or a maximum period a prisoner serving
life imprisonment should serve before he or she was eligible to be
considered for release on parole. The respondents are, accordingly,
not entirely correct when they say that no regulations were made in
terms of s 124 of Act No. 17 of 1998. Regulations were made but they
did not provide for a minimum or maximum period a prisoner serving
life imprisonment should serve before he or she was eligible to be
considered for release on parole. Thus, neither the enabling Act nor
the regulations made thereunder prescribed any such minimum or
maximum prison terms.





[16] The matter does
not rest there, though. The applicants contend further that ‘the
4th to the 8th respondents have relied on the aforementioned Annexure
‘2’ for ‘the administration of the prison and in
particular for the computation of sentences and the release of
prisoners sentenced to life imprisonment on parole’. I have
previously held that Annexure ‘2’ was not a delegated
legislation and so art 140(1) of the Namibian Constitution did not
apply. It was also not a colonial Government Policy which could bind
the Government of the Republic of Namibia. In this regard, I should
signalize this. The fact that, as the applicants aver, the 4th to 8th
respondents have relied on and applied Annex ‘2’ does not
matter tupence. Their act has no relevance in these proceedings. An
act of an administrative body or administrative official which is
done in conformity with no legislation, delegated legislation or a
lawful Government policy does not bind any person or the court.
Indeed, the court would be acting unjudicially if the court gave
judicial blessing to any such act. If the court accepted such act and
acted on it, the court would be perpetuating an illegality; and the
court is not entitled to do that. I, accordingly, accept Mr
Namandje’s submission on the point.





[17] Based on these
reasons, prayers 3 and 4, too, fail; and, they are rejected.





[18] In prayers 1,
2, 3 and 4 the applicants seek declaratory orders. The power of the
court to grant declaratory orders is governed by s 16 of the High
Court Act 16 of 1990 which provides that the Court has power -





‘(d) …
in its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination.’





In virtue of the
aforegoing reasoning and conclusions I hold firmly that the
applicants have failed to establish a right which this court, in the
exercise of its discretion, may protect by granting declaratory
orders. Keeping this holding in my mind’s eye, I move on to
consider prayers 5 and 6.





Prayer 5: An order
directing the 7th and 8th respondents to consider all the applicants
for release on parole and to submit its recommendations to the 4th
respondent within 30 days from the date of such order.





Prayer 6: An order
directing the 4th respondent to consider the recommendations from the
7th respondent with 30 days from the date of receipt of such
recommendations and to inform the applicants accordingly.





[19] I have held
previously that the applicants have failed to establish a right which
this court may protect by granting declaratory orders. It follows
inevitably and irrefragably and as matter of course that prayers 5
and 6 cannot succeed. The granting of prayers 5 and 6 depends
indubitably on the granting of the declaratory orders sought in
prayers 1, 2, 3 and 4 of the notice of motion. Having rejected
prayers 1, 2, 3 and 4, it must follow irrefragably and inexorably
that prayers 5 and 6 cannot succeed. Accordingly, the relief sought
in prayers 5 and 6 should also fail, and is rejected.





[20] The burden of
the court in the instant proceeding is to determine application A
58/2014 brought on notice of motion which contains the dispute that
the court is entitled to hear and adjudicate in terms of art 80(2) of
the Namibian Constitution. I have heard and adjudicated the dispute
and I have refused to grant the orders sought in the notice of
motion. That should be the end of the matter; whereupon I make the
following order:





The application is
dismissed with costs.





C Parker





Acting Judge



APPEARANCES








APPLICANTS: S
Rukoro





Instructed by
Directorate of Legal Aid, Windhoek








RESPONDENTS: S
Namandje





Instructed by
Government Attorneys, Windhoek