Court name
Supreme Court
Case name
Prosecutor-General of the Republic of Namibia v Gomes and Others
Media neutral citation
[1970] NASC 19
Judge
Mainga JA











REPORTABLE



CASE NO: SA 62/2013


IN
THE SUPREME COURT OF NAMIBIA


In
the matter between:


 








































PROSECUTOR-GENERAL
OF THE REPUBLIC OF NAMIBIA



Appellant



and



 



JOÃO
CARLOS VIDAL GOMES



First
Respondent



ATTORNEY-GENERAL
OF THE REPUBLIC OF NAMIBIA



Second
Respondent


 



MINISTER
OF JUSTICE OF THE REPUBLIC OF NAMIBIA



Third
Respondent



REGIONAL
COURT MAGISTRATE: SWAKOPMUND



Fourth
Respondent



MARTIN
NAMBALA



Fifth
Respondent



MELKISEDEK
SHEEHAMA



Sixth
Respondent



SAKARIA
SAKARIA SAPANGE



Seventh
Respondent



 


Coram:                     
MAINGA
JA, SMUTS JA and O’REGAN, AJA


Heard:                      
5 March 2015


Delivered:                
19 August 2015



APPEAL JUDGMENT


SMUTS
JA (MAINGA JA and O’REGAN AJA concurring):


[1]
The
central issue to be determined in this appeal concerns whether the
reverse onus in the statutory offence dealing with the acquisition of
stolen goods impermissibly infringes upon the right to a fair trial
entrenched in Art 12 of the Constitution. That offence is cast in s
7(1) of the General Law Amendment Ordinance, 1956.[1]


[2]
The
first respondent was found in possession of three welding machines on
the premises of his employer by the police. He had allegedly
purchased two of these machines from one of his co-accused in the
prosecution which ensued.


[3]
The
first respondent was charged in the regional court with theft. An
alternative charge of contravening s 7(1) was also preferred against
him. He pleaded not guilty to all charges. His counsel informed the
regional court prosecutor that he intended to challenge the
constitutionality of s 7(1) on the grounds that it infringed his
rights to a fair trial. The regional court prosecutor then indicated
that she would not continue with  the  alternative charge
of contravening s 7(1) but would persist with the main charge of
theft.


[4]
Section
7(1) reads as follows:


Any
person who is in any manner, otherwise than at a public sale,
acquires or receives into his possession from any other person stolen
goods, other than stock or produce as defined in section one of the
Stock Theft Law Amendment Ordinance, 1935 (Ord 11 of 1935), without
having reasonable cause, proof of which shall be on such first
mentioned person, for believing at the time of such acquisition or
receipt that such goods are the property of the person from whom he
receives them or that such person has been duly authorised by the
owner thereof to deal with or dispose of them, shall be guilty of an
offence and liable on conviction to the penalties which may be
imposed on a conviction of receiving stolen property knowing it to
have been stolen except in so far as the imposition of any such
penalty may be compulsory’.


It
is to be read with s 7(2) which provides:


For
the purposes of sub-sec (1) “public sale” means a sale
effected –


(a) 
At
any public market; or


(b) 
By
any shopkeeper during the hours when his shop may in terms of any law
remain open for the transaction of business; or


(c) 
By a
duly licensed auctioneer at a public auction; or


(d) 
In
pursuance of an order of a competent court’.


[5]
In
terms of s 264 of the Criminal Procedure Act, 1977,[2]
(CPA) a competent verdict on the main count of theft would include a
contravention of s 7(1). Given the risk that the first respondent ran
of being convicted of contravening s 7(1) as a competent verdict, he
brought an application to the High Court to set aside s 7(1) on the
grounds that the reverse onus contained in it offends against the
cluster of rights which make up the right to a fair trial embodied in
Art 12 of the Constitution. The rights invoked included the
presumption of innocence and the privilege against self-incrimination
and more generally the right not to be a compellable witness against
oneself and the right to silence contended to be inherent to the
right of a fair trial even if not expressly included in Art 12.


[6]
The
first respondent explicitly relied upon the majority judgment in
S
v Manamela & Another (Director-General of Justice Intervening)
[3]
in which the Constitutional Court of South Africa declared invalid
the reverse onus in an almost identically worded offence created in s
37(1) of the South African General Law Amendment Act, 1955.[4]


[7]
The
first respondent’s application was opposed by the
Prosecutor-General, the appellant.  In her opposition to the
application, the Prosecutor-General (PG) referred to the difference
in wording between the provisions in the South African and Namibian
Constitutions and argued that the interpretation given by the
Constitutional Court to s 37(1) is to be seen within the context of
the South African Constitution. The PG submitted that the meaning and
import of the right to a fair trial embodied in Art 12 would need to
be ascertained with regard to the text of the Namibian instrument and
the intention of its founders. The PG correctly pointed out that the
rights to remain silent and not to have to testify during a trial are
not expressly provided for in Art 12 of the Namibian Constitution,
whilst these rights are entrenched as part of the right to a fair
trial in the South African Constitution.


[8]
The
PG also submitted that the fundamental rights entrenched in the
Constitution are not absolute and unqualified and that the limitation
of the right to a fair trial by virtue of the reverse onus in s 7(1)
constituted a justifiable limitation upon the right to a fair trial,
given the need for the effective prosecution of crime in independent
Namibia.


[9]
For
the large part, the PG’s opposition relied heavily upon the
approach found in the closely reasoned minority judgment in
Manamela.
The PG argued that the legislature should be allowed to regulate the
market in stolen goods by imposing an obligation upon members of the
public to act conscientiously to  avoid participation in that
market by discouraging them from acquiring goods otherwise than at a
public sale without first ascertaining satisfactorily that the goods
have not been stolen. The effect of requiring the public to undertake
the kind of inquiries imposed by s 7 would, she argued, diminish
traffic in stolen goods.


[10]
The
PG further stated that Namibia is beset by robbery and theft which
support an active market for stolen goods. She contended that it
would not be unjustifiable for the legislature to exhort its citizens
not to encourage a market in stolen goods because the existence of
this market gives rise to crime. Given the extensive market in stolen
goods, the State would be entitled to oblige its citizens to act
vigilantly to ensure that they can prove that they have reason to
believe that the goods they acquire are not stolen.


[11]
The
PG also submitted that the rationale for s 7(1) is sound in that it
deals with matters which are peculiarly within the knowledge of the
accused. The accused would be in the best position to produce the
requisite evidence that he or she had reasonable cause for believing
that the goods were acquired from the owner or from some other person
who had the authority of the owner to dispose of them. The PG pointed
out that proving the state of mind of the accused would invariably
present the prosecution with particular difficulties. In these
circumstances, the accused would only be required to prove facts to
which he or she has easy access, and which it would be reasonable to
expect the prosecution to disprove. The PG also contended that there
is also a logical connection between the facts proven and the fact
presumed.


[12]
The
PG also contended that the presumption was necessary to effectively
prosecute the offence, and that limitation contended for would not
negate the essential content of the right, and is of general
application.


Judgment
of the court below


[13]
A
full court (of two judges) heard the first respondent’s
challenge upon s 7. The court found that the reverse onus in s 7
infringed the presumption of innocence. Following the approach of the
majority in
Manamela,
it found that the risk that an accused may be convicted despite the
existence of reasonable doubt infringed the presumption of innocence
and violated Art 12.


[14]
The
court below proceeded to strike down the phrase ‘proof of which
shall be on such first mentioned person’ in s 7(1) as
unconstitutional.


[15]
Despite
finding the reasoning of the majority in
Manamela
to
be persuasive, the court did not however consider in its judgment
whether to read in words which would instead establish an evidential
presumption upon an accused which the majority in
Manamela
had
done. The effect of the order of the High Court by striking down the
reverse onus without more would require the prosecution to establish
beyond reasonable doubt that an accused person did not have
reasonable cause to believe that the goods were not stolen. The
manifest difficulties in doing so and the consequent emasculation of
the offence and the vacuum in the legislative framework caused by
this are not addressed by the court below. Nor is the fact that the
majority in
Manamela
deliberately eschewed this approach because of these consequences and
for this reason found that this vacuum would be addressed by reading
in words to establish an evidential presumption.


[16]
The
court below further stated:


In
a society where the majority of our population is illiterate and
engage in informal trading as a way of making a living on a daily
basis, the risk of innocent people being convicted and sent to jail
is too high if the reverse onus in s 7(1) is to be retained. The
reverse onus imposes a full legal burden of proof on the accused and
after hearing all the evidence, there is doubt in the mind of the
judicial officer as to where the truth lies, the constitutional
presumption of innocence is replaced by a statutory presumption of
guilt and a conviction will follow even though the version of the
accused might reasonably be true’.


[17]
The
court reasoned that the presumption of innocence, essential to a
society committed to fairness and justice, would safeguard against
the risk of people being convicted where there was reasonable doubt.


The
appeal


[18]
The
PG appealed against the court’s judgment.


[19]
The
first respondent’s legal practitioner of record withdrew after
the appeal was noted. At the request of the court, Mr Tjombe was
appointed as
amicus
curiae
to
present argument on behalf of the first respondent. The court
appreciates his industry in doing so.


Mootness


[20]
On
the day before the hearing and some time after filing his written
heads of argument, Mr Tjombe filed an affidavit stating that he had
eventually been able to get hold of the first respondent following
his earlier unsuccessful attempts. The first respondent had conveyed
to him that he had been acquitted in the regional court on the day
before the hearing of this appeal and had no interest in the outcome
of the appeal.


[21]
The
constitutional issue between the first respondent and the PG had thus
become moot as far as the first respondent was concerned.


[22]
Counsel
for the PG requested the court to nevertheless determine the appeal.
He accepted that the constitutional issue was no longer a live issue
as between the first respondent and the PG. But he said that it was a
matter of public interest for the issue of the reverse onus in s 7(1)
to be finally determined as several prosecutions and future
prosecutions would be affected. Mr Tjombe accepted that the broader
public interest would be served if there were to be a final
determination of the issue.


[23]
As
a general principle, courts would decline to hear matters in which
there is no live or existing controversy. This is to avoid
pronouncing upon issues which have become academic and have no
practical effect. But the fact that a case has become moot between
the parties should not constitute an absolute bar to the
justiciability of an issue, particularly in constitutional matters.
It is a matter to be decided in the court’s discretion. In the
exercise of a court’s discretion, an important factor to be
considered is whether the court’s order will have any practical
effect upon the parties or on others and for achieving legal
certainty.


[24]
This
is the approach adopted both in South Africa
[5]
and in
England. In
R
v Security of State for the Home Department, Ex parte Salem
,[6]
it was said by Lord Slynn of Hadley:


The
discretion to hear disputes, even in the area of public law, must,
however be exercised with caution and appeals which are academic
between the parties should not be heard unless there is a good reason
in the public interest for doing so, as for example (but only by way
of example) when a discrete point of statutory construction arises
which does not involve detailed consideration of facts and where a
large number of similar cases exist or are anticipated so that the
issue will most likely need to be resolved in the near future.’
[7]


[25]
Although
the substantive issue is now moot between the parties, it should be
noted that the question of costs remains live as the High Court made
an adverse costs order against the PG. Ordinarily, however, a
continuing dispute about a costs order will not suffice on its own
for the court to exercise its discretion to determine an issue that
is no longer live between the parties. In this case, there are two
reasons why it is appropriate for this court to decide the issue in
this appeal.  First, the order made by the High Court, if
permitted to stand, would have the harmful effect of leaving a
‘vacuum’ in the legislative framework.[8]
Secondly, given the fact that there are several pending prosecutions
for contravening s 7, the public interest will be served in achieving
legal certainty on this issue.


Submissions
on appeal


[26]
Counsel
for the PG argued that the High Court erred in failing to find that
words should be read into s 7 in order to establish an evidential
burden as had seen done by the majority in
Manamela.
Counsel also argued that the common law should be developed so that
the impugned words create an evidential burden to be satisfied by
evidence creating a reasonable doubt.


[27]
The
amicus
curiae

defended the High Court judgment and submitted that the impugned
words infringed the presumption of innocence embodied as a central
component of the right to a fair trial entrenched in Art 12. Counsel
also argued that the approach of the majority in
Manamela
in this regard should be followed. Counsel relied upon the portion of
the High Court’s judgment referring to members of the community
engaging in informal trade who would be at risk of conviction even if
an evidential burden were to be read into s 7. He also argued that,
upon a purposive approach to Art 22 of the Constitution, s 7 was
unconstitutional and that an evidential burden should also not be
read into s 7.


Constitutional
interpretation


[28]
The
principles applicable to constitutional interpretation are well
settled. The general approach when construing provisions of chapter 3
entrenching fundamental rights and freedoms has been held by this
court to avoid narrowness and that these provisions are to be
‘broadly, liberally and purposively interpreted so as to avoid
the austerity of tabulated legalism’.[9]


[29]
As
was also recently stressed by this court in the
Attorney-General
case, close regard is to be had to the language of the Constitution
itself to identify the purpose of the constitutional provision in
question.[10] This is of
particular importance when the provisions of the Constitution
materially differ from the wording employed in other Constitutions,
such as the South African Constitution. Article 12 is a case in
point. There are significant differences between the wording of Art
12 and its counterparts in the interim and final South African
Constitutions. For instance the right to silence is expressly
referred to in the South African instruments whilst there is no
reference to it in Art 12.


[30]
This
court also stressed in
Attorney-General
that caution should be exercised in having regard to foreign
precedent when considering the constitutionality of provisions in a
statute, emphasising:


.
. . Ultimately the meaning and import of a particular provision of
the Constitution must be ascertained with due regard to the express
or implicit intention of the founders of the Constitution.
Furthermore, as a general proposition, whilst foreign precedent is a
useful tool to determine the trend of judicial opinion on similar
provisions in jurisdictions which enjoy open and democratic societies
such as ours, ultimately the value judgment that a Namibian court has
to make in the interpretation of the provisions of the Constitution
in as much as they may impact on the impugned provisions, must be
based on the values and aspirations of the Namibian society’.
[11]


Article
12


[31]
The
right to a fair trial, entrenched in Art 12, reads thus:



'Fair Trial


(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.


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


(c)
Judgments in criminal cases shall be given in public, except where
the interests of juvenile persons or morals otherwise require.


(d)
All persons charged with an offence shall be presumed innocent until
proven guilty according to law, after having had the opportunity of
calling witnesses and cross-examining those called against them.


(e)
All persons shall be afforded adequate time and facilities for the
preparation and presentation of their defence, before the
commencement of and during their trial, and shall be entitled to be
defended by a legal practitioner of their choice.


(f)
No persons shall be compelled to give testimony against themselves or
their spouses, who shall include partners in a marriage by customary
law, and no Court shall admit in evidence against such persons
testimony which has been obtained from such persons in violation of
Article 8(2)(
b)
hereof.


(2)
No persons shall be liable to be tried, convicted or punished again
for any criminal offence for which they have already been convicted
or acquitted according to law: provided that nothing in this
Sub-Article shall be construed as changing the provisions of the
common-law defences of previous acquittal and previous conviction.


(3)
No persons shall be tried or convicted for any criminal offence or on
account of any act or omission which did not constitute a criminal
offence at the time when it was committed, nor shall a penalty be
imposed exceeding that which was applicable at the time when the
offence was committed’.


[32]
After
a thorough survey of authorities of this and several other
jurisdictions, this court in
Attorney-General
stated of Art 12:[12]


It
appears to me that the essential content of Art 12 is the right to a
fair trial in the determination of all persons' 'civil rights and
obligations or any criminal charges against them' and that the rest
of the subarticles, which only relates to criminal trials, expounds
on the minimum procedural and substantive requirements for hearings
of that nature to be fair. A closer reading of Art 12 in its entirety
makes it clear that its substratum is the right to a fair trial. The
list of specific rights embodied in Art 12 (1)(
b)
– (
f)
does not, in my view, purport to be exhaustive of the requirements of
the fair criminal hearing and as such it may be expanded upon by the
courts in their important task to give substance to the overarching
right to a fair trial. To take but one example: the right to present
written and oral argument during a hearing or trial is undoubtedly an
important component of a fair trial, but one searches in vain for it
in Art 12. The contrary view expressed in
Van
den Berg
,
ie that the list is exhaustive, cannot be accepted as correct and
should therefore not be followed. I am fortified in this conclusion
by the
dictum
of Kentridge AJ in
S
v Zuma and Other
s
1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401; [1995]
ZACC 1) at 651J–652A relied on by Mr Botes where the learned
acting justice in interpreting s 25(3) of the South African Interim
Constitution stated as follows:


The
right to a fair trial conferred by that provision is broader than the
list of specific rights set out in paragraph (a) to (j) of the
subsection. It embraces a concept of substantive fairness which is
not to be equated with what might have passed muster in our criminal
courts before the constitution came into force.”


Kentridge
AJ went on to observe at 652C–D that when the South African
Constitution came into operation, s 25(3) had required criminal
trials to be conducted in accordance with the “notions of basic
fairness and justice” and that it was then for all courts
hearing criminal trials to give content to those notions’.


[33]
The
true content of Art 12 is thus the right to a fair trial. Like many
of the rights entrenched in chapter 3, it is not absolute and
unlimited as I further explained below.


[34]
The
court in
Attorney-General
found  that  the  non-derogation  clause  in
 Art 24, is of limited assistance in the interpretation of Art
12.[13] I would venture to put
the proposition in even stronger terms. Art 24 only finds application
during any period when a state of national defence or declaration of
emergency is in force.


[35]
In
considering reverse onus provisions in s 332(5) and s 245 of the
Criminal Procedure Act, 1977,[14]
the court in
Attorney-General
framed the context of the enquiry in these terms:[15]


.
. . Fundamental to the enquiry is whether the Constitution authorises
a limitation to the presumption of innocence entrenched in Art
12(1)(
d).
Unlike the provisions of some of the constitutions cited to us by
counsel, the Namibian Constitution does not have a general limitation
clause which restricts the scope of some or all of the fundamental
rights and freedoms entrenched therein. The approach adopted by the
founders of our Constitution is different: on the one end of the
spectrum are those fundamental rights and freedoms which are
inviolable, such as the rights to life and dignity entrenched in arts
5 and 8. On the other end of the spectrum are those rights and
freedoms where limitations are authorised in the clearest of language
and the extent of those limitations is extensively defined, such as
in Art 21 entrenching fundamental freedoms. In between those rights
and freedoms at either end of the spectrum, are a number of other
rights and freedoms of which the scope and application is qualified
by phrases such as “according to law”, “in
accordance with law” or “according to procedures
established by law”’.


[36]
The
court thus identified on the one end of the spectrum rights that are
expressly inviolable and on the other, rights where limitations are
expressly authorised and delineated, such as in Art 21(2). Implicit
in the reasoning in
Attorney-General
is that the other rights in chapter 3 between these two ends of the
spectrum are not necessarily absolute. Phrases such as ‘in
accordance with law’ and ‘according to law’ imply
that the rights are not absolute or unlimited in their scope, but in
my view, it does not follow that rights that are not expressly
qualified in this way are absolute. Whether they are will depend on
their nature and content as purposively construed.   This
is demonstrated by the fact that this court has held that rights,
even without an internal limiting phrase such as “according to
law”, are nevertheless, in their nature, properly construed,
not absolute or unlimited.


[37]
For
instance, this court has found that the right to property protected
in art 16 is not absolute.[16]
This court stated in this regard:


The
owner of property has the right to possess, protect, use and to enjoy
his property. This is inherent in the right to own property. It is,
however, in the enjoyment and use of property that an owner may come
into conflict with the rights and interests of others, and it is in
this sphere that regulation in regard to property is mostly needed
and in many instances absolutely necessary. Such regulation may
prohibit the use of the property in some specific way or limit one or
other individual right without thereby confiscating the property and
without thereby obliging the State to pay compensation.’
[17]


[38]
After
proceeding to cite several statutory examples illustrating this, this
court concluded:


It
is in my opinion inconceivable that the founding fathers of our
Constitution were unaware of the vast body of legislation regulating
the use and exercise of rights applicable to ownership or that it was
their intention to do away with such regulation. Without the right to
such control it seems to me that it would be impossible for the
Legislature to fulfil its function to make laws for the peace, order
and good government of the country, in the best interest of the
people of Namibia (Art 63(1) of the Constitution). It therefore seems
to me that, like the right to equality before the law (Art 10(1) of
the Constitution), the right to ownership in property is not
absolute, but is subject to certain constraints which, in order to be
constitutional, must comply with certain requirements’.
[18]


[39]
A
similar approach was adopted with reference to the equality clause at
an early stage by the High Court in
Mwellie
v Ministry of Works, Transport and Communication and Another
.[19]


[40]
After
a thorough comparative survey of authorities, Strydom JP in his
illuminating judgment in
Mwellie
quoted the following with approval:


'On
the strength of the above quotations I think it can be said that the
courts, in all the countries referred to by me, accepted that
equality before the law is not absolute and that the legislature
must, for good and proper government and also for the protection of
those who are unequal, legislate. In this legislation reasonable
classifications may be made and as long as these classifications are
rationally connected to the object of the statute the courts will
accept the constitutionality of such legislation.'
[20]


and
concluded:


.
. . I have therefore come to the conclusion that also in regard to
the Namibian Constitution Art 10(1) thereof is not absolute but that
it permits reasonable classifications which are rationally connected
to a legitimate object and that the content of the right to equal
protection takes cognisance of “intelligible differentia”
and allows provision therefor’.
[21]


[41]
That
approach was followed in this court in
MWeb
Namibia (Pty) Ltd v Telecom Namibia Ltd and Others
.[22]
This court in
MWeb
made it clear that the fundamental right to equality protected in Art
10 is not absolute.


Case
law has also settled the principle that legislation introducing
limitations to fundamental freedoms or rights will not be struck down
as unconstitutional if it makes reasonable classifications which are
rationally connected to its object. It has been said that such
classifications are sometimes necessary for the purpose of good
governance and protection of those who are unequal’.

[23]


[42]
As
held in the
Attorney-General
matter, the right to a fair trial is not absolute. The concept of a
fair trial is flexible, requiring a balance to be struck between an
individual’s rights to a fair trial (including that to be
presumed innocent) and the State’s obligation to protect the
interest of the public in effectively combating and prosecuting
crime.[24]


[43]
A
similar approach was adopted by Strydom JP in
Freiremar
SA v Prosecutor-General of Namibia and Another
[25]
where he held that placing a reverse onus upon an accused would not
be unconstitutional in all cases, citing both Canadian and American
authorities.[26] He concluded
that the ‘rational connection test’ should be followed in
determining whether the reverse onus would pass constitutional muster
as follows:


In
my opinion the test as applied in these cases is a practical one
which would require an accused to speak up in circumstances where an
explanation would be required because of the presumption raised by
the proved facts and because of the personal knowledge of the
accused. However, where the proven facts are not such that an
explanation is readily required the placing, in those circumstances,
of an inverted onus on an accused will require an accused to prove
his innocence which will be  contrary to  the  Constitution
 containing a  provision as  that  set  out
 in  Art 12(1)(
d)
of the Namibian Constitution.’


[44]
This
court in
Attorney-General
cited this approach[27] with
approval and made it clear that reverse onus provisions and
evidential presumptions are not necessarily unconstitutional.[28]


[45]
In
S
v Meaker
,[29]
cited with approval by this court in
Attorney-General,[30]
Cameron J helpfully distilled the following (sometimes overlapping)
considerations from South African Constitutional Court decisions
concerning challenges on reverse onus provisions:


(a)      
where the use is required to prove only facts to which he or she has
easy or peculiarly within his or her knowledge, and which it would be
unreasonable for the prosecution to disprove;[31]


(b)      
where there is a ‘logical connection’ between the fact
proved and the fact presumed[32]
and where the presumed fact is something which is more likely than
not to arise from the basic facts proved;[33]


(c)       
where the application of the common-law rule relating to the State’s
onus
causes substantial harm to the administration of justice, or where
the presumption is necessary if the offence is to be effectively
prosecuted, and the State shows that for good reason it cannot be
expected to produce the evidence itself;[34]


(d)      
where generally the presumption in its terms is cast to serve only
the social need it purports to address, and is not disproportionate
in its impact – and specifically the extent of the danger that
innocent people may be convicted;[35]


(e)      
where the State could adequately achieve its legitimate ends by means
which would be constitutionally competent in general and consistent
with the presumption of innocence in particular.[36]


This
list, referenced to authorities, can assist and provide useful
guidance to courts in Namibia in determining the circumstances in
which a reverse onus will not be in conflict with Art 12 of the
Constitution.


[46]
This
court in
Attorney-General[37]
also cited with express approval the approach of Lord Woolf in the
Privy Council in
Attorney-General
of
Hong
Kong v Lee Kwong-Kut.
[38]
That
matter concerned the compatibility of two separate provisions
containing reverse onus provisions with the Hong Kong Bill of Rights.
One of the provisions created an offence where a person ‘having
in his possession or conveying in any manner anything which may be
reasonably suspected of having been stolen or unlawfully obtained’
and who was unable to ‘give an account to the satisfaction of a
magistrate, how he came by it’. The second statutory provision
raised in the matter concerned a reverse onus in drug trafficking
legislation creating a serious crime where persons are concerned in
an arrangement whereby the retention or control of another’s
proceeds of drug trafficking was facilitated, knowing or having
reasonable grounds to believe that the other person carried on or had
carried on drug trafficking or benefited from it. The section in
question created this offence – an absolute prohibition on
engaging in that activity with a person who upon a belief on
reasonable grounds was carrying on or benefitted from drug
trafficking. It was subject to a special defence where an accused was
required to establish on a balance of probabilities that he or she
did not know or suspect the arrangement related to trafficking.


[47]
The
court in
Attorney-General
referred at some length to the approach adopted by Lord Woolf for the
Privy Council as follows:


His
Lordship went on to remark at 954g–h that while the Hong Kong
judiciary should be zealous in upholding an individual's rights under
the Bill of Rights, it was also necessary to ensure that disputes
regarding the effect of the Bill of Rights were not allowed to get
out of control. The issues arising out of the Bill of Rights should
be approached with realism and kept in proportion. If that was not
done, the Hong Kong Bill of Rights would become a source of injustice
and would be debased in the eyes of the public. He concluded at 954j
in fine – 955a as follows:


In
order to maintain the balance between the individual and the society
as a whole, rigid and inflexible standards should not be imposed on
the legislature's attempts to resolve the difficult and intransigent
problems with which society is faced when seeking to deal with
serious crime . . .  It would not assist the individuals who are
charged with offences if, because of the approach adopted to
statutory defence by the courts, the legislature, in order to avoid
the risk of legislation being successfully challenged, did not
include in the legislation a statutory defence to a charge”.’


I
respectfully associate myself with the above sentiments. Lord Woolf
thus acknowledged that situations may arise where the strict
application of the principle that the prosecution must prove the
guilt of an accused beyond reasonable doubt may be deviated from and
gave an example where this may be done and why. He reasoned at 950c–h
and I find it necessary to quote in extenso:


'There
are situations where it is clearly sensible and reasonable that
deviations should be allowed from the strict application of the
principle that the prosecution must prove the defendant's guilt
beyond reasonable doubt. Take an obvious example in the case of an
offence involving the performance of some act without a licence.
Common sense dictates that the prosecution should not be required to
shoulder the virtually impossible task of establishing that a
defendant has not a licence when it is a matter of comparative
simplicity for a defendant to establish that he has a licence . . .
Some exceptions will be justifiable, others will not. Whether they
are justifiable will in the end depend upon whether it remains
primarily the responsibility of the prosecution to prove the guilt of
an accused to the required standard and whether the exception is
reasonably imposed, notwithstanding the importance of maintaining the
principle which Art 11(1) enshrines. The less significant the
departure from the normal principle, the simpler it will be to
justify an exception. If the prosecution retains responsibility for
proving the essential ingredients of the offence, the less likely it
is that an exception will be regarded as unacceptable. In deciding
what are the essential ingredients, the language of the relevant
statutory provision will be important. However, what will be decisive
will be the substance and reality of the language creating the
offence rather than its form. If the exception requires certain
matters to be presumed until the contrary is shown, then it will be
difficult to justify that presumption unless, as was pointed out by
the United States Supreme Court in Leary v US (1969) US 395 6 at 36,
''it can at least be said with substantial assurance that the
presumed fact is more likely than not to flow from the proved fact on
which it is made to depend'.


[48]
The
passage which immediately proceeded this extensive quotation is in my
view of significance too. Lord Woolf said in the context of other
constitutional instruments which protected the right to a fair trial
(or equal protection before the law) without a general limitation
provision of the kind found in the Canadian Charter:


Even
though they are not subject to any express limitation, they are
considered to have an implicit degree of flexibility . . . This
implicit flexibility allows a balance to be drawn between the
interest of the person charged and the state’.


[49]
I
respectfully agree with this court in
Attorney-General
that
the approach of the Privy Council in that matter is instructive.


[50]
In
the application of this approach to the two offences, the Board in
the
Hong
Kong
matter
considered that the most significant element of the offence in the
first appeal (of possession of a suspected stolen item) was the onus
placed on an accused person to give an explanation as his or her
innocent possession of the property. Unlike s 7, the prosecution in
Hong
Kong

need only establish possession and facts from which a reasonable
suspicion of the property having been stolen may be inferred. The
Privy Council found that offence impermissibly to contravene the
right to be presumed innocent.


[51]
As
to the drug trafficking contravention, the Board reached a different
conclusion. The substance of the offence was involvement in a
transaction involving the relevant person’s proceeds of drug
trafficking and reasonable grounds to believe the specified facts.
The failure to establish these would result in an acquittal. Turning
to the reverse onus, Lord Woolf said:


However,
once the defendant knows or has reasonable grounds to believe that
the relevant person is a person who carries on or has carried out
drug trafficking or has benefited from drug trafficking, then the
defendant knows he is at risk of committing an offence and that he
can only safely deal with that person if he is in a position to
satisfy s 25(3) or (4). If the defendant chooses not to take the
precautionary action under s 25(3) then he knows he can only safely
proceed by relying on s 25(4). To be able to achieve this the
defendant will have to take any steps to ensure that he does not have
the knowledge or suspicion referred to. An example would be by
insisting on seeing documents establishing the untainted source of
the funds. If the defendant has done this then he will be aware of
the relevant facts and it is reasonable that he should be required to
establish them. It will be extremely difficult, if not virtually
impossible, for the prosecution to fulfil the burden of proving that
the defendant had not taken those steps. In the context of the war
against drug trafficking, for a defendant to bear that onus under s
25(4) is manifestly reasonable and clearly does not offend Art
11(1)’.
[39]


Section
7


[52]
Turning
to s 7, it establishes the statutory offence of being in possession
of stolen goods. It was enacted hard on the heels of s 37 of the
General Law Amendment Act, 1955[40]
in South Africa and is in substantially identical terms. Its
statutory genesis is usefully explained in the majority judgment in
Manamela.[41]


[53]
The
structure and the wording of s 7(1) require the prosecution to
establish three elements beyond reasonable doubt. These are firstly
that the accused was found in possession of goods, other than stock
or produce; secondly that the goods were acquired other than at a
public sale and thirdly that the goods had been stolen. A public sale
for the purpose of this offence is defined in s 7(2) quoted in para
[4] above. (This is unlike the position in the
Hong
Kong
legislation
where possession and a suspicion of being stolen needed to have been
established).


[54]
Once
the prosecution has proven these elements beyond reasonable doubt,
the accused then attracts the burden of showing that he or she had
reasonable cause for believing at the time of acquisition of the
goods that the person from whom they were received was the owner or
authorised by the owner to dispose of them. This the accused must
establish on a balance of probabilities.


[55]
By
imposing a burden of this nature upon an accused – to establish
the reasonableness of his or her subjective belief, s 7 effectively
provides for statutory criminal liability for the negligent, albeit
innocent, acquisition or receipt of stolen goods.[42]


[56]
Both
the majority and the minority in
Manamela
found that s 37(1) infringed upon the presumption of innocence
entrenched in the South African Constitution. This was because the
reverse onus necessarily implied that if an accused is unable to
discharge it, he or she would be convicted even though there might be
the existence of reasonable doubt on the part of a judicial officer
trying the case. The majority thus found that it was unconstitutional
for the legislature to require persons found in possession of stolen
goods not acquired in a public sale to prove (and bear the onus) that
they had reasonable cause for believing the goods were not stolen at
the time of their acquisition.


[57]
The
minority, while finding that the onus infringed the presumption of
innocence, however concluded that this was justifiable and
constitutionally permissible to require that a person so found in
possession of stolen goods to persuade a court that he or she had
reasonable cause for believing that the goods were not stolen at the
time of their acquisition.


[58]
The
approach of the minority is neatly summarised at the outset of the
judgment:


[61]
Where, as in our country, the market in stolen goods is extensive and
the pattern of theft and robbery feeding that market is excessively
violent, we consider that society has the right to oblige citizens to
act vigilantly to ensure that they can prove that they have reason to
believe that the goods are not stolen. This obligation has been
imposed by the Legislature through the creation of a special offence
which is tailored to capture the extent of culpability appropriate in
these circumstances. The impact of the offence is that an accused,
found in possession of stolen goods obtained otherwise than at a
public sale and who is unable to establish reasonable cause for
possessing such goods, is convicted, not of theft or common-law
receiving, but of a special statutory offence. In our view, there can
be no constitutional complaint about this offence.


[62]
Accordingly, we cannot agree with the majority that the reverse onus
should be declared invalid. In our view, although the criminal
offence established in s 37(1) of the General Law Amendment Act 62 of
1955 not only trenches upon the right to silence, but also upon the
presumption of innocence, it does so in a justifiable manner. We do
not differ from the majority on how the matter should be approached
in relation to the justifiability of the infringements in question.
Where we differ is in what answer the approach should yield. We
accept, for the reasons given by the majority, that to the extent
that s 37 breaches the right to silence, it is justifiable. However,
we disagree with the majority in that, in our view, the section's
infringement of the presumption of innocence is also justifiable. In
this judgment, therefore, we consider only the latter issue - the
justifiability of the breach of the presumption of innocence’.


[59]
The
right to remain silent is not expressly contained in Art 12 (unlike
in South Africa).  However, the presumption of innocence is. The
question arises whether s 37 is in conflict with Art 12, to the
extent that it protects the presumption of innocence.


[60]
The
centrality to a fair trial – the core right protected in Art 12
– of the presumption of innocence is well established.
Requiring the prosecution to establish an accused person’s
guilt beyond reasonable doubt has been widely regarded as a central
feature of many legal systems to safeguard against convicting the
innocent and the risk of error.[43]


[61]
Nevertheless,
as described above, under the Namibian Constitution, the presumption
of innocence is not absolute. This has been established by this court
in
Attorney-General
and
by a full bench of the High Court in
Freiremar.
The
question to be determined in this case is whether the reverse onus
imposed on an accused person by s 7 is an infringement of Art 12,
given that Art 12 does not prohibit all reverse onuses.


[62]
As
emphasised by the PG, Namibia is beset by robbery and theft. These
feed an active and extensive market for stolen goods. In my view, it
is justifiable for the legislature to discourage the market for
stolen goods by obliging people acquiring goods otherwise than a
public sale to take steps to ascertain satisfactorily that the goods
are not stolen.


[63]
An
analysis of s 7 makes plain that an accused person will need to show,
on a balance of probabilities, that he or she had ‘reasonable
cause . . . for believing at the time of . . . acquisition’
that the goods are owned by the person from whom he or she receives
them, or that the person is authorised by the owner to dispose of
them.  The requirement of ‘reasonable cause’ is an
important ameliorative element in considering the effect of the
presumption, one which seeks to balance the interest of the accused
with the interest of the broader public.  As the minority in
Manamela
reasoned:


The
first is that prudent application of s 37's requirement of
“reasonable cause” appreciably reduces the risk of unfair
convictions. The requirement of reasonable cause introduces an
objective element into the analysis. An accused is required to
establish that the grounds proffered for believing the goods were not
stolen would have been accepted by a reasonable person as grounds for
that belief. The difficulties of applying a purely objective test in
a diverse society have been acknowledged by our Courts and have led
some commentators to suggest that the test for
culpa
in our law should be subjective. Whatever the merits of this
suggestion, it is clear that in applying the “objective”
element in the determination of reasonable cause, the court does not
ignore the material circumstances in which the accused found himself
or herself. In
R
v Mbombela
,
one of the early authoritative cases establishing the objective
criterion, the Court held that:


(a)
reasonable belief, in my opinion is such as would be formed by a
reasonable man in the circumstances in which the accused was placed
in a given case.”
[44]


and


The
test for reasonableness, of course, remains objective. But what is
reasonable will be construed in the circumstances in which the
accused in a particular case finds himself or herself. The courts
will therefore take into account the circumstances in which the
accused acted in determining whether it was reasonable to believe
that the goods were not stolen. “Reasonableness” is a
legal commonplace in the courts which are required to apply it daily
in determining the standard of care exacted of persons in ordinary
life. Whether on the facts established an accused had “reasonable
cause” will depend upon the presiding officer exercising a
sound and fair judgment in regard to a number of factors including –


(a)       
the nature and value of the goods acquired;


(b)       
how they were acquired and the price, if any, that was paid for them;



(c)       
the person from whom they were acquired;


(d)       
the manner in which trade in such goods normally occurs;


(e)       
the volume in which the goods in question are traded; and


(f)        
the social context in which the acquisition occurs’.
[45]


[64]
The
amicus
curiae

made much of the reference in the High Court’s judgment to ‘the
majority of our population’ being illiterate and engage in
informal trading as a way of living on a daily basis, with the risk
of people being convicted and imprisoned being too high if the
reverse onus in s 7(1) were to be retained’. There was no
evidence to this effect on the papers. The court did not elaborate
upon the nature of the trading referred to and the nature of goods so
traded. The court would appear to have overlooked the fact that
produce is excluded from the ambit of the offence. It also overlooked
the requirement of reasonable cause, discussed above. Taking into
account those factors, the concern raised, albeit unsupported, would
in my view be addressed by the test properly applied and the further
aspects set out in ameliorating the risk of innocent people being
convicted.


[65]
Another
consideration in determining whether a reverse onus constitutes an
infringement of Art 12 will be the nature of the offence concerned. 
The offence established by s 7 is not as serious an offence as theft,
as was recognised by the minority in
Manamela
differing from the majority which had emphasised the seriousness of
the offence. The minority stressed:


A
second important consideration in determining the justifiability of s
37's infringement of the presumption of innocence is the seriousness
of the offence it creates and the accompanying question of sentence.
In this regard we differ from the majority, whose analysis in our
view tends to overstate the seriousness of the offence. Section 37
does not render a convicted accused guilty of common-law theft, nor
even of common-law receiving. That the Legislature considered a
contravention of this section as being less serious than either is
spelt out in the provision itself, which renders an accused “liable
on conviction to the penalties which may be imposed on a conviction
of receiving stolen property knowing it to have been stolen except
insofar as the imposition of any such penalty may be compulsory”.


Recognising
this, the Courts have already established a realm of negligent as
opposed to dishonest contraventions of s 37, and marked that out as
deserving special consideration in regard to punishment. In
S
v Ghoor
,
Holmes JA held that, where an accused subjectively believed that the
goods were not stolen but was unable to prove that reasonable grounds
existed for this belief, the crime committed was 'not a question of
dishonesty, but more a matter of negligence'.    The
prison sentence imposed by the trial court was set aside on appeal
and replaced with a fine and a suspended term of imprisonment. The
basis upon which an accused is convicted is thus determinative, as in
Ghoor,
of the question of sentence. In the present case, the long prison
sentences imposed were the result of the previous convictions of the
two accused’.
[46]


[66]
I
respectfully agree that these factors significantly reduce the risk
of innocent persons being convicted.


[67]
A
further consideration relevant to the question whether s 7 is an
impermissible infringement of Art 12 relates to the purpose of s 7.  
Again, the reasoning in the  minority judgment in
Manamela
is of assistance in this regard -


[82]
It is important to appreciate the specific character of the offence s
37 creates. In effect, the Legislature has criminalised possession of
stolen goods where an accused cannot establish reasonable cause for
possessing them. The purpose of the offence is clear: it is to
regulate the market in stolen goods by imposing obligations upon
members of the public to act diligently by avoiding participation in
that market. The method s 37 uses to achieve this objective is to
oblige someone caught in possession of stolen goods, acquired
otherwise than at a public sale, upon pain of criminal punishment to
advance a reasonable and probable explanation for their possession.
In doing so, the State imposes a burden on that person in the sense
that a reasonably possible explanation - in other words, a reasonable
possibility of having reasonable cause - will not suffice to escape
criminal conviction. The explanation must also be probable. The
statutory offence of which the accused is convicted is, in effect,
that of being unable so to satisfy a court’.


There
is thus a logical connection between the facts to be proved and
presumed.


[68]
The
value of discouraging people from acquiring goods other than at a
public sale unless satisfied they are not stolen, is clear

The
consequence will be to oblige the public to make enquiries in a
manner that might help diminish traffic in stolen goods. The
importance of s 7 in combatting crime, including violent crime in the
form of robberies, is beyond dispute. The courts in Namibia have
repeatedly stressed the prevalence and scourge of robbery and its
deleterious impact upon society.[47]
The need to diminish traffic in stolen goods and curtail robbery and
theft in Namibia is a compelling legislative objective. If this form
of crime is not combatted, that may, in the words of Lord Woolf,
amount to a social injustice and debase the Constitution in the eyes
of the public.[48] The
flexibility inherent in the right to a fair trial in my view permits
a balance between the rights of the individual and society as a whole
when addressing the pressing problem of the prevalence of violent
crime in the form of robbery as well as theft and the market for
stolen goods which they both feed.


[69]
In
my view, the means chosen by the legislature – to require
accused persons found in possession of stolen property to provide a
reasonable basis for believing that the goods were not stolen –
is compatible with the Constitution. The effect of the presumption is
to require members of the public to exercise care and take reasonable
steps to establish that goods are not stolen when acquiring them
otherwise than at a public sale. The provision has the salutary
effect of affirming the importance of law abiding citizens taking
steps to discourage criminal conduct and refraining from implicating
themselves in its ambit.[49]


[70]
There
is a sufficiently close and rational connection between those
targeted by the section, its purpose and the reverse onus embodied in
it. Once a person is found in possession of stolen goods, it would
ordinarily be extremely difficult for the prosecution to establish
how he or she came into that possession.


[71]
Section
7’s purpose of requiring members of the public to be vigilant
to avoid traffic in stolen goods is an eminently legitimate state
objective which, in this instance, is pursued by reasonable
means.[50]


[72]
Given
the wide prevalence of robbery and theft emphasised by the courts, it
is in my view justifiable to require citizens found in possession of
stolen goods obtained otherwise than at a public sale to establish
reasonable grounds to believe that they were not stolen when
acquiring them.  For these reasons, I conclude that s 7 does not
constitute an infringement of Art 12 of the Namibian Constitution and
accordingly the appeal must succeed.


Costs


[73]
Counsel
for the PG sought costs against the first respondent in the event of
succeeding with the appeal. The first respondent sought to vindicate
his constitutional right to a fair trial. He did so on the strength
of substantial authority, cited in his application which found favour
in the High Court and which was ultimately not followed in this
court. The assertion of his constitutional right by the first
respondent was not without some basis.


[74]
There
is a public interest in citizens asserting their fundamental rights
entrenched in the Constitution. One of the considerations relevant to
the determination of costs is that adverse costs orders should not
deter the public from asserting their constitutional rights in
appropriate cases, except where entirely without merit, frivolous or
for an ulterior motive such as for the purpose of delay. In the
exercise of the discretion governing costs orders, this would strike
me to be an instance where an unsuccessful litigant should not be
mulcted with costs and that no award of costs should be made.


Order


[75]
The
following order is made:


1.   
The
appeal succeeds.


2.   
The
order of the High Court is set aside and replaced with the following
order:


The
application is dismissed”.


___________________


SMUTS
JA


 


___________________


MAINGA
JA


 


___________________


O’REGAN
AJA


 


APPEARANCES


























APPELLANT:



D
F Small



 



Instructed
by the Government Attorney



 



 



FIRST,
FIFTH, SIXTH AND SEVENTH RESPONDENTS:



 


N
Tjombe



 



Amicus
Curiae



 








[1]
Ord 12 of 1956.




[2]
Act 51 of 1977.




[3]
2000 (3) SA 1 (CC) (‘Manamela’).




[4]
Act 62 of 1955. [s 37 (1)].




[5]
Van Wyk v Unitas Hospital and
Another
2008 (2) SA 472
(CC) para 29;
Sebola and
Another v Standard Bank of South Africa Ltd and Another

2012 (5) SA 142 (CC) para 32;
Independent
Electoral Commission v Langeberg Municipality
2001
(3) SA 925 (CC) para 11.




[6]
[1999] 2 All ER 42
(HL). Followed in
Executive
Officer, Financial Services Board v Dynamic Wealth Ltd and Others
2012
(1) SA 453 (SCA) para 44.




[7]
Supra 47d.




[8]
As was explained
by the majority in Manamela, para 58 and referred in paragraph [15]
above.




[9]
Government of Republic of Namibia
v Cultura 2000
1993 NR 328
(SC) repeatedly followed and most recently in the context of Art 12
in
Attorney-General of
Namibia v Minister of Justice and Others

2013 (3) NR 806 (SC) para 7. (
Attorney-General).




[10]
Supra para
7.




[11]
Supra para
8.




[12]
Supra
para 17.




[13]
Supra para
27.




[14]
Art 51 of 1977.




[15]
Supra para
11.




[16]
Namibian Grape Growers and Exports
Association and Others v Ministry of Mines and Energy and Others
2004 NR 194 (SC) at
210J-211G. See also
Municipal
Council of Windhoek v Telecom Namibia Ltd
SA
24/2013.




[17]
See Namibian
Grape Growers
case,
cited in previous footnote
,
at
210J-211B.




[18]
Supra at
211G-I.




[19]
1995 (9) BCLR 1118
(Nm).




[20]
Supra at
1131C-D, followed in
MWeb
Namibia (Pty) Ltd v Telecom Namibia and Others
2011
(2) NR 670 (SC) para 14.




[21]
Supra
at 1132F.




[22]
Supra para
14.




[23]
Supra
para 13.




[24]
Supra para
31.




[25]
1996 NR 18 (HC) (Full Bench).




[26]
Supra p
25E-J.




[27]
Supra para
48.




[28]
Supra para
48. The court also approved of similar pronouncements in the South
African Constitutional Court in
S
v Zuma
1995 (2) SA 642
(CC), and of the Zimbabwean Supreme Court in
S
v Chogugudza
1996 (1) ZLR
28 (SC) and a closely reasoned decision by a full court in the South
African High Court in
S v
Meaker
1998 (8) BCLR 1038
(W)
.




[29]
Supra.




[30]
Supra para.




[31]
S v Zuma supra
at
662 para 38.




[32]
S v Bhulwana; S
v Gwadiso
1996
(1) SA 388 (CC) paras 23–24.




[33]
S v Mbatha; S v
Prinsloo
1996
(2) SA 464 (CC) para 22.




[34]
S v Zuma supra
paras
37, 41.




[35]
S v Mbatha, S v
Prinsloo
paras
20-24.




[36]
S v Coetzee and
Others
1997
(1) SA SACR 379 (CC) para 48.




[37]
Supra paras
36 – 37.




[38]
[1993] 3 All ER
939 (PC).




[39]
Supra at
953f-h.




[40]
Act 62 of 1955.




[41]
Para 14 – 15.




[42]
Manamela supra para
20.




[43]
Manamela (minority)
para 68 and the authorities collected
there.




[44]
Supra para
74.




[45]
Supra
para 76.




[46]
Supra
para 78 and 79.




[47]
S v Immanuel Paulus
Case No CA 114/1998 unreported High Court 28/32/2001,
Gaus
v State
Case No CA 26/2009
unreported High Court 10/4/2012.




[48]
See S
v Van den Berg
1995
NR 23 (HC).




[49]
Supra
para 89.




[50]
Supra
para 98.