S v Vries (CR 32/96) [1996] NAHC 53 (19 June 1996);


Full judgment

HEARD ON: 1996/03/20 & 1996/04/30
DELIVERED ON: 1996/06/19
Fundamental Human Rights and Freedoms - cruel and inhuman
punishment - Stock Theft Act providing for minimum sentence
upon second or subsequent conviction - Provision unconstitu-
tional as requires imposition of sentence which in cases
that can be foreseen as likely to arise commonly will
be such that no reasonable man would have imposed
Act thus provides for punishment which is inhuman
Section proscribing the minimum\sentence down-read.
Sentence - Minimum mandory sentence - Constitutionality
of. Not per se unconstitutional - Test to be applied
-If sentence in particular caTse such that no reasonable
man would have imposed it is unconstitutional - Where
cases that this will happen can be foreseen as likely
to arise commonly statory provision subject to attack
where not like to arise commonly a constitutional
exemption must be applied in respect of the particular
case before court. Constitutional law - Stock Theft
Act - Minimum proscribed sentence unconstitutional
Not referred back to Parliament in terms of Act 25(1)(a)
of Constitution - Not done as minimum would sentence
remain in place pending referal, as section down-read
and not struck out completely essence of section remain
intact and no valid societal aim paralysed.

CASE NO. CR 32/96
In the matter* between
Heard on: 1996.03.20 + 1996.04.30
Delivered on: 1996.06.19
FRANK, J.: The accused was convicted of the theft of a
goat valued at N$280. The accused, a 45 year old male,
informed the Court that he was married with six children and
employed earning N$250 per month plus rations. The accused
had previous convictions namely theft of a sheep valued at
N$6 during 1969, use of property without the owner's consent
during 1977 and malicious damage to property during 1979.
The magistrate sentenced the accused to 18 months
imprisonment which he suspended in toto.
When the matter was initially submitted for review my
brother Hannah J. queried the sentence as it did not comply
with the provisions of the Stock Theft Act, no. 12 of 1990
in that section 14(1)(b) of that Act provides for a minimum
sentence of three years imprisonment for a second or
subsequent conviction of stock theft which cannot be

suspended partially or wholly (section 14(2)). The matter
has now been referred to the full bench to determine whether
the prescribed minimum sentence is in conflict with Article
8(2)(b) of the Constitution which reads: "No persons shall
be subject to torture or to cruel, inhuman or degrading
treatment or punishment."
In ex parte Attorney-General, Namibia: In Re Corporal
Punishment, 1991(3) SA 76 (NmSC) the Supreme Court had the
following to say with regard to Article 8:
"It seems clear that the words have to be
read disjunctively. Thus read, the section seeks
to protect citizens from seven different
(a) Torture;
(b) cruel treatment;
(c) cruel punishment;
(d) inhuman treatment;
(e) inhuman punishment;
(f) degrading treatment;
(g) degrading punishment.
Although the Namibian Constitution expressly
directs itself to permissable derogations from the
fundamental rights and freedoms entrenched in
chapter 3 of the Constitution, no derogation from
the rights entrenched by Article 8 is permitted.
This is clear from Article 24(3) of the
Constitution. The State's obligation is absolute
and unqualified. All that is therefore required
to establish a violation of Article 8 is a finding
that a particular statute or practise authorised
or regulated by a State organ falls within one or
other of the seven permutations of Act 8(2) (b)
; 'no questions of justification can ever
arise.' (at 86 B - E)
The question as to whether a particular form of
punishment authorised by the law can properly be
said to be inhuman or degrading involves the
exercise of a value judgment by the Court
It is however a value judgment which requires
objectively to be articulated and identified,
regard being had to the contemporary norms,
expressed in its national institutions and its
Constitution, and further having regard to the

emerging consensus of values in the civilised
community (of which Namibia is a part) which
Namibians share. This is not a static exercise.
It is a continually evolving dynamic. What may
have been acceptable as a just form of punishment
some decades ago, may appear to be manifestly
inhuman or degrading today. Yesterday's orthodoxy
might appear to be today's heresy."
(at 86 H - 87 A)
As is apparent from the heading of the above Supreme Court
decision the question that had to be resolved was whether
the infliction of corporal punishment was in conflict with
Article 8(2) (b) of the Constitution and not when will a
permissable form of punishment such as imprisonment conflict
with Article 8(2)(b), if ever. The value judgment and the
way it is to be made must thus be seen in that context. It
is not apposite in the present case, e.g. to determine
whether India, Canada, Australia, USA, etc have stock
theft Acts and what their penal provisions provide and if
they do not have minimum sentences to conclude that
therefore the Namibian Stock Theft Act, in so far as it
makes provision for minimum sentences, is unconstitutional.
The problems, effects and importance of Stock Theft would
vary from country to country as would, probably, the way it
is dealt with. What however is important and significant is
that it is clear that the prohibition against the
punishments mentioned in Article 8(2)(b) is absolute and to
decide whether Article 8(2) (b) is infringed is a value
judgment that could vary from time to time but which is one
not arbitrarily arrived at but which must be judicially
arrived at by way of an attempt to give content to the value
judgment by referral to the prevailing norms which may o:
may not coincide with the norms of any particular judge. A;

was pointed out in Cohen v Georgia, 1977 433 US 584 at 592
these judgments "should not be, or appear to be, merely the
subjective views of individual Justices; judgment should be
informed by objective factors to the maximum possible
The first question to decide is whether the imposition of a
minimum sentence by the legislature is per se
unconstitutional. The defects of such sentences are
succinctly spelt out in S v Thorns; S v Bruce, 1990(2) SA
802 (A) at 806 H - 807 D in the following terms:
"The first principle is that the infliction of
punishment is pre-eminently a matter for the
discretion of the trial Court (at R v Mapumulo and
Others, 1920 AD 56 at 3 7 ) . That Courts should, as
far as possible, have an unfettered discretion in
relation to sentence is a cherished principle
which calls for constant recognition. Such a
discretion permits of balanced and fair
sentencing, which is a hallmark of enlightened
criminal justice. The second, and somewhat
related principle, is that of the
individualisation of punishment, which requires
proper consideration of the individual
circumstances of each accused person. This
principle too is firmly entrenched in our law (S
v Rabie. 1975(4) SA 855 (a) at 861 D; Sy
Scheepers, 1977(2) SA 159 (A) at 158 F - G ) .
A mandatory sentence runs counter to these
principles (I use the term 'mandatory sentence' in
the sense of a sentence prescribed by the
legislature which leaves the Court with no
discretion at all - either in respect of the kind
of sentence to be imposed or, in the case of
imprisonment, the period thereof). It reduces the
Court's normal sentencing function to the level of
a rubber stamp. It negates the ideal of
individualisation. The morally just and the
morally reprehensible are treated alike.
Extenuating and aggravating factors both count for
nothing. No consideration, no matter how valid or
compelling, can affect the question of sentence.
As Holmes J.A. pointed out in S v Gibson, 1974(4)
SA 478 (A) at 482 A, a mandatory sentence
'unduly puts all the emphasis on the punitive

and deterrent factors of sentence, and
precludes the traditional consideration of
subjective factors relating to the convicted
Harsh and inequitable results inevitably follow
from such a situation. Consequently judicial
policy is opposed to mandatory sentences (ct S v
Mpetha, 1985(3) SA 702 (A) at 710 E ) , as they are
detrimental to the proper administration of
justice and the image and standing of the courts."
Despite the mentioned defects the imposition of a mandatory
sentence is accepted in both Canada and the United States of
America as not being per se contrary to the provisions of
their respective Constitutions which prohibits "cruel and
unusual" punishment. As will be seen later the factors
mentioned in the Thorns case above, are considered when
deciding whether such a sentence is unconstitutional or not.
This is done out of deference to the legislature which as
representative of the populace clearly reflects the norms
and values of the electorate and thus of society in general.
Thus regard is had to the "contemporary norms, expressed in
its national institutions" (see Corporal Punishment case,
above). Parliament is empowered by the Constitution to pass
legislation and is thus undoubtedly entitled to proscribe
conduct as criminal and to determine punishment for conduct
so proscribed. I am thus of the view that minimum sentences
are not per se unconstitutional. This view is bolstered by
the approach set out hereinafter which in my view is the
only reasonable one to allow both Parliament and the courts
to play their proper role as envisaged by the Constitution.
I pause here for a moment to state that if a minimum
sentence is unconstitutional then for the reasons set out in
the Thorns case a maximum one would also be unconstitutional.

Whereas Parliament may generally enact legislation including
legislation with penal provisions Parliament cannot enact
penalties which will fall foul of Art 8(2) (b) . Whether a
prescribed punishment infringes Art 8(2) (b) is for the
courts to decide and not for Parliament (Art 25 of the
Constitution). This is also the approach in Canada and the
USA. (See Smith v The Queen. 1987(34) CCC (3d) 97 and the
Georgetown Law Journal (Vol. 79 no. 4 April 1991). In Smith
v The Queen the following appears at 13 7:
"It is not for the court to pass on the wisdom of
Parliament with respect to the gravity of various
offences and the range of penalties which may be
imposed upon those found guilty of committing the
offences. Parliament has broad discretion in
proscribing conduct as criminal and in determining
proper punishment. While the final judgment as to
whether a punishment exceeds constitutional limits
set by the Chapter is properly a judicial function
" , the courts are empowered, indeed required,
to measure the content of legislation against the
guarantees of the Constitution."
The next question that arises is when will courts hold that
a minimum mandatory sentence amounts to cruel, inhuman or
degrading punishment. In both the USA and Canada the courts
have evolved a test based on proportionality. Thus a
sentence is "in violation of the eighth amendment if it is
grossly disproportionate to the severity of the offence" in
the USA (Georgetown Law Journal, above at 1118 - 1121) and
"Section 12 is violated where the sentence prescribed is
grossly or excessively disproportionate to the wrongdoing"
in Canada (R v Goltz. 1991(6) CCC (3d) 481 at 482 b ) . The
mentioned eighth amendment reads "Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted" and section 12 reads
"Everyone has a right not to be subjected to any cruel and
unusual treatment or punishment."
To determine whether a sentence is "grossly
disproportionate" use is made of expressions like; "- a
severe punishment must not be unacceptable to contemporary
society", "the infliction of a severe punishment by the
State cannot comport with human dignity when it is nothing
more than the pointless infliction of suffering" , it is
excessive and serves no valid legislative purpose", "
invalid if popular sentiment abhors it" (Furman v Georgia,
(1971) 408 US 238 at 277, 279) and "outrage standards of
decency", " no one, not the offender and not the
public, could possibly have thought that that particular
accused's offence would attract such penalty. It was
unexpected and unanticipated in its severity either by him
or by them." (Smith v The Queen, supra at 139 and 1 4 7 ) .
The fact that the sentence is excessive in the view of the
Court hearing the matter is not sufficient to declare it
unconstitutional. This point is made in both the majority
and minority judgments in Smith v The Queen. Lamer J. makes
the point as follows in the majority judgment:
"The test for review under section 12 of the
Charter is one of gross disproportionality,
because it is aimed at punishments that are more
than merely excessive. We should be careful not
to stigmatise every disproportionate or excessive
sentence as being a constitutional violation, and
should leave to the usual sentencing appeal
process the task of reviewing the fitness of a
sentence. Section 12 will only be infringed where
the sentence is so unfit having regard to the

offence and the offender as to be grossly-
disproportionate. "
(at 139)
Mclntyre J. makes the same point in his minority judgment as
"Not every departure by a court or legislature
from what might be called a truly appropriate
degree of punishment will constitute cruel an
unusual punishment. Sentencing, at the best of
times, is an imprecise and imperfect procedure and
there will always be a substantial range of
appropriate sentences. Further, there will be a
range of sentences which may be considered
excessive, but not so excessive or so
disproportionate as to 'outrage standards of
decency' and thereby justify judicial interference
under section 12 of the Charter. In other words,
there is a vast grey area between the truly
appropriate sentence and a cruel and unusual
sentence under the Charter."
(at 109 - 110)
It seems to me that the disproportionality test is the same
test that was originally used to determine whether a
sentence was shocking before the "shocking" test became
virtually synonymous with the "startlingly" or "disturbingly
inappropriate" test. Thus in R v Taliaard, 1924 TPD 581
Curlewis J. held in this regard that a court could not
interfere with a sentence unless "it is so clearly excessive
that no reasonable man would have imposed it." It is with
this test that Shreiner J. took issue in R v Recce, 1939 TPD
242 and which eventually led to the "shocking" test to
become synonymous with the "disturbingly or startlingly
inappropriate" test. Shreiner J. states the following at p.
243 - 244:
said: 'Unless
"In that case Curlewis, J.

the Court is clearly of opinion that no reasonable
man ought to have imposed such a sentence,
the Court cannot interfere.' It would, on
principle, seem regrettable that the Court should
not be entitled to alter a sentence which seemed
to it to be grossly excessive, because it could
conceive of reasonable people holding a different
view. In matters of sentence opinions must
necessarily vary greatly. Different people will
inevitably take different views with regard to the
appropriate punishment in any particular case and,
consequently, the Court would have to hesitate
long indeed before it could come to the conclusion
that a particular sentence is such that no
reasonable person ought not to have awarded it.
But the position is different when the Court has
to express its own view as to whether the sentence
is excessive or not; on such a question the Court
is able to give a clear and definite opinion
It is clear, at least that the Court will not
interfere simply because it disagrees with the
sentence that was imposed ; but at some
stage more disagreement may be left behind and the
superior court may feel a sense of shock or
outrage at the sentence."
In considering what "no reasonable man would have imposed"
all the factors taken into account in the
"disproportionality" test would have to be considered and I
doubt whether in effect the "shocking" test as proposed in
the Tali aard case differs from the "disproportionally" test.
This "shocking" test also gives sufficient recognition to
the legislature because as pointed out by -Shre-iner J. only
punishments which are "more than merely excessive" will be
subject to attack and will leave other sentences to be
normal appeal procedures which would include appeals on the
basis of shock in its normal sense intact but distinct from
the basis of "shock" in constitutional challenges to
sentences. In this way not every excessive or even
startlingly or disturbingly inappropriate sentence will be
dealt with as constitutional violations but will be dealt
with under the normal principles applicable to appeals

concerning sentences.
Where I hereafter use the work "shock" in a constitutional
sense I refer to shock as defined in the Taliaard case as
being a sentence "so excessive that no reasonable man would
have imposed it" and not to the concept as used in its
ordinary meaning as developed for appeals in the ordinary
course of Criminal Procedure.
It follows thus that this Court must look at the facts of
the present case and determine what a proper sentence would
have been taking all the facts and circumstances into
account which must be taken into account when sentencing an
accused. Once this is done and an appropriate sentence has
been determined this sentence must then be measured against
the statutory mandatory one. If this is done and the
mandatory sentence induces a sense of shock then Act 8(2)(b)
has been infringed.
What must be determined next is whether the statutory
section must be set aside or whether only the sentence
imposed on the individual accused must be set aside.
Both counsel approached the matter on the basis that the
statutory injunction must be set aside and there was no
basis on which a sentence on an individual basis could be
set aside without setting the statutory injunction aside.
I am not convinced that this proposition is sound as in
Canada both these possibilities exist (R v Kumar, Vol. 20
Canadian Rights Reporter 114) and it seems to me that the

ratio of our Supreme Court in S v Tcoeib, 1996(1) SACR 390
(NmS) is to the same effect. In the Tcoeib case the Supreme
Court dealt with the constitutionality of life imprisonment
under two distinct headings namely as set out at 391 h - i:
"1. Is the imposition of a sentence of life
imprisonment per se unconstitutional in
2. If it is not per se unconstitutional, is such
sentence nevertheless unconstitutional in the
circumstances of the present case?"
The approach clearly indicates that whereas a sentence may
in general terms not be unconstitutional per se it may be
such on the facts of a particular case. How must one then
determine whether a minimum sentence is per se
unconstitutional or whether it is unconstitutional only in
a specific case (i.e. when does one apply the so-called
"constitutional exemption" to a particular accused and not
nullify the empowering statute).
The Canadians have evolved a set of principles which in my
view is the only sensible approach once it is accepted that
a sentence may in general be acceptable and constitutional
but in a particular case be unacceptable and
unconstitutional. From a reading of the Canadian cases of
Smith v The Queen. R v Goltz and R v Kumar mentioned above,
the following may be said to be their approach: (Here it
must be kept in mind that even if a sentence is held to be
grossly disproportionate it may still be upheld because of
section 1 of the Canadian Charter which creates derogations
under certain circumstances. This is however not the case

in Namibia where the rights created in Art 8(2) (b) are
absolute as already pointed o u t ) .
1. A statutory minimum sentence of imprisonment is not per
se unconstitutional.
2. It will be unconstitutional however if it prescribes
imprisonment as a punishment which is "grossly
disproportionate" to the circumstances of the offender
and the offence.
3. The section 12 test for "gross disproportionality" is
to be applied first with respect to the offence and
offender before court, and then with respect to
hypothetical cases which, , can be foreseen as
likely to arise commonly." (R v Kumar, at 130. See
also Smith and Goltz cases).
4. Where a statutory minimum sentence is found to be
"grossly disproportionate" there are three possible
avenues open to the court namely:
(a) to declare the provision of no force or effect for
all purposes;
(b) to declare the provision to be of force and effect
only in a particular class of cases i.e. to read
it down; and
(c) to declare the provision to be of no force or

effect in respect to the particular case before
the court i.e. apply a constitutional exemption.
5. Although not totally clear it seems that the options
mentioned above in 4 (a) and (b) are followed when
"cases can be foreseen as likely to arise
commonly" and option 4 (c) is followed when what was
described in the Goltz case at 497 as "far-fetched and
marginally imaginable cases" suddenly becomes reality
which can happen as every experienced lawyer can
If the test with regard to legislation is not to be based on
"reasonable hypothetical circumstances as opposed to far-
fetched or marginally imaginable cases" then no statutory
minimum sentence will survive scrutiny. In this manner a
proper balance is in my view struck between the role of the
legislature and the courts. Thus if the sentence legislated
is not shocking in reasonable hypothetical cases it will not
be impugned. If in an individual case it then turns out to
be shocking that individual's right in terms of Art 8(2)(b)
will be protected by applying a constitutional exemption.
On this basis Parliament can legislate generally and the
constitutional rights of the subjects are protected.
Maybe an example from Canada where the constitutional
exemption option was followed will clarify the matter
further. Thus in R v Chief (see Kumar case at 124 - 125) a
native Indian Trapper from the Yukon area who was reliant on
game for the support of his family and dependent on income

from the sale of furs faced a mandatory prohibition against
the possession of firearms after having been convicted of an
assault. Esson J. justified the reliance on the
constitutional exemption as "the remedy which will do
justice in the instant case without changing the general
good. Section 98(1), in its application to the great
majority of Canadians, cannot possibly be considered to
offend the Charter." (Section 98 was the section providing
for the mandatory prohibition).
In my view the position in Namibia can be summarised as
follows or be divided into the following steps:
1. A statutory minimum sentence is not per se
2. It will be unconstitutional if it provides for a
punishment which will be shocking in the circumstances
of the specific case before court.
3. Where a statutory minimum sentence results in a
shocking sentence there are four options available to
the court, namely;
(a) to declare the provision of no force or affect for
all purposes,
(b) to declare the provision to be of no force and
effect only in a particular class of cases i.e. to
down-read it,

(c) to declare the provision to be of no force or
effect in respect to the particular case before
court i.e. apply a constitutional exemption,
(d) to allow the legislature to cure the defects in
the impugned legislation pursuant to the
provisions of Art 25(1)(a) of the Constitution.
4. Where the statutory minimum sentence is found to be
shocking in the case before the Court the Court must
then enquire whether it will be shocking "with respect
to hypothetical cases which, , can be foreseen as
likely to arise commonly." If the answer to the second
enquiry is in the affirmative then the Court must act
in one of the respects set out in 3 (a) , (b) or (d)
above. If the answer to the second enquiry is in the
negative the court must act as set out in 3(c) above.
Before I deal with the facts of the present case it is
necessary to briefly deal with minimum sentences imposed for
second or subsequent offenders in general. To decide
whether such a sentence is in conflict with Article 8(2) of
the Constitution the same general principles should apply (R
v Kumar above, see also R v Parsons quoted in the Canadian
Charter of Rights; Vol. 3 at 12: 90080 where a minimum
penalty of 90 days for a third or subsequent conviction for
drunken driving was upheld). However as is apparent from
the Kumar case other considerations may apply based on the
fact that it is at the discretion of the prosecution to
prove or not to prove previous convictions. Thus although

such sentences may not be grossly disproportionate the Kumar
case dealt also with the factor of the arbitrariness in the
proof of previous convictions and the effect thereof on the
"principles of fundamental justice." I make no decision
with regard to these aspects as the matter was referred to
this court to establish whether the mandatory sentence
provided for in the Stock Theft Act infringed on Art 8(2) (b)
and on no other basis and both counsel also directed their
submissions on this basis only.
As already stated the Stock Theft Act makes provision for a
minimum sentence of 3 years imprisonment for a second or
subsequent conviction. It is apposite to quote the section
at this juncture in toto:
"14(1) Any person who is convicted of an
offence referred to in paragraph (a) ,
(b) , (c) or (d) of subsection (1) of
section 11 shall be liable -
(a) in the case of a first conviction
(i) to imprisonment for a period
not exceeding 10 years; or
(ii) to a fine not exceeding
R4 0 000; or
(iii) to both such fine and such
imprisonment; or
(b) in the case of a second or
subsequent conviction, to
imprisonment for a period not
exceeding 2 0 years: Provided that
where such second or subsequent
conviction relates to stock, other
than poultry or the carcase or
portion of the carcase of any such
stock, such person shall be liable
to imprisonment for a period of
not less than three years, but not
exceeding 20 years."

As also already mentioned section 14(2) expressly excludes
a court from suspending any portion of the minimum mandatory
sentence for second or subsequent offenders where such
offenders were 18 years or older when the second or
subsequent offence was committed.
The first factor to notice is that there is no limit on the
number of years which may elapse between the date of the
last previous conviction and the offence in respect of which
the minimum penalty is to be applied. Thus in the present
case the accused's previous conviction for stock theft in
1969 triggered the minimum sentence upon his second
conviction in May 1995, a period of approximately 26 years.
Here it must be borne in mind that in general, as was
pointed out by Taylor J.A. in R v Kumar at 131, that:
"It is, of course, recognised in the sentencing
process that the significance of a previous
conviction, especially if it is the sole previous
conviction, reduces with the passage of time.
There comes a point at which, in the case of all
but the most serious of offences, a sole
conviction registered many years ago no longer has
any significance at all."
The present accused has more than one previous conviction
but even then his last conviction prior to this case was in
1977 and thus approximately 18 years ago. I may just point
out that the fact that previous convictions may lose their
significance due to the affluxion of time seems to be an
important consideration where minimum sentences are
scrutinised in the USA (R v Kumar at 131) and has also been
recognised in a country such as South Africa where it is

expressly provided for that certain previous convictions
fall away after 10 years (section 271 A of the Criminal
Procedure Act-, Act 51 of 1977) .
The second factor to note is that although the section does
limit itself by excluding poultry and the carcase of stock
from its ambit it does not distinguish between the different
kinds of stock at all. Thus, e.g. whether sheep or cattle
are involved makes no difference, and this where it is
common knowledge that the value of cattle are five to six
times that of sheep. The only other exemption is made for
second or subsequent offenders under 18 years of age.
In my view the circumstances of the present case does not
warrant a sentence in excess of 9 months imprisonment
whereas I personally would have imposed one of 6 months.
From this it follows that one of three years can only be
described as shocking. In fact, the sentence imposed by the
magistrate is also startlingly inappropriate. The fact that
he suspended it in toto does soften its effect but the point
is he had to start off from the basis that 18 months was
appropriate before he had to decide whether to suspend it in
toto or only a portion thereof. (S v Olyn en Andere,
1990 (2) SA 73 (NC)) .
Due to the factors already mentioned relating to the non-
limitation of previous convictions, the failure to
distinguish between different kinds of stock and also due to
the prevalence of stock theft I am of the view that
hypothetically cases where the minimum sentence will

probably be shocking "is likely to arise commonly."
In order to attempt to counter the prevalence of stock theft
and the effects thereof especially in the rural areas where
people barely eke out a living with the small number of
livestock they possess Parliament thought it necessary to
introduce a minimum sentence. This followed a public outcry
especially from farmers and the rural community. This can
easily be understood. To steal even one sheep or goat from
a person trying to make a living out of say a herd of ten is
catastrophic for such a person. Furthermore with transport
and vast distances that can be covered in one night as well
as the fact that extensive farming is mostly practised in
this country it is not easy to counter stock theft.
Parliament had every right to attempt to do everything
within its powers to curb these pernicious activities.
The factors mentioned is clearly such that cognisance can be
taken thereof and are thus part of the "objective factors"
mentioned earlier which would and must influence the value
judgment as to whether a specific sentence will be
constitutional or not. They are clearly factors which the
reasonable man would contemplate and which a court must also
take cognisance of to determine whether a reasonable man
ought not to have imposed such a sentence.
The next question which arises is whether the whole section
14 must be declared unconstitutional, whether it should be
read down or whether it should be referred back to
Parliament to correct the defects.

If the matter is referred back to Parliament the section
will remain valid until the conditions of the referral has
been met (Article 25(1) (a)). This would mean that in the
meantime persons will receive the minimum mandatory-
sentence. This is not only a hypothetical possibility but
will happen on a daily basis. Furthermore, in my view, as
I intend to down-read the sections for reasons I will set
out later, the essence of the section will remain intact
giving some effect to the intention of Parliament while also
immediately recognising the rights of ordinary citizens.
Parliament will in any event be entitled to amend the
section should it so wish. As already pointed out the
passing of the Stock Theft Act had a valid social aim as its
object and the order I intend making will not render the
whole Act inoperative as it does not strike at the heart
thereof and no valid societal aim will be paralysed if the
Act is not referred to Parliament for corrective action.
As it is not the imprisonment per se which is
unconstitutional but only the minimum prescribed period of
imprisonment I am not inclined to declare the whole of
section 14(1) (b) unconstitutional. I intend to read the
section down in such a way that upon a second or subsequent
conviction an offender will have to undergo a period of
imprisonment which will be in the discretion of the Court
but which the Court will not be able to suspend because of
section 14(2) unless of course such second or subsequent
offender was under the age of 18 when he/she committed such
second or subsequent offence. Because of the provisions of
section 284 of the Criminal Procedure Act, no. 51 of 1977

this will in effect mean that there will remain a minimum
sentence of four days imprisonment.
Before I conclude I need to say something about the
practical effects of this judgment. Magistrates are not
entitled to declare any mandatory punishment
unconstitutional or to grant a constitutional exemption in
any particular case. They must apply the law as it stands.
Should they be of the view that a mandatory sentence would
be unconstitutional they must impose it nevertheless and
thereafter refer the matter for review or even special
review to the High Court.
In the result:
(a) The words "of not less than three years, but" is struck
out from section 14(1)(b) of the Stock Theft Act, Act
no. 12 of 1990 as being in conflict with Act 8(2) (b) of
the Constitution; and
(b) the sentence imposed by the magistrate is set aside and
substituted with one of six (6) months imprisonment.

m his judgment.
1 a g r S e W i t h t h e
°rder proposed , .
by F r a n k fl
F r a n k J
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f r j u d g m e n t to t h e

Instructed by:
Amicus Curiae