Court name
High Court
Case number
APPEAL 267 of 1999
Title

Muller and Another v Prosecutor-General (APPEAL 267 of 1999) [2000] NAHC 32 (14 December 2000);

Media neutral citation
[2000] NAHC 32
















A.
267/99






HENDRIK
MULLER VAN AS & 1 OTHER vs THE STATE.



HEREIN
REPRESENTED BY THE PROSECUTOR-GENERAL























Silungwe, J;
Levy.
AJ
.
Manyarara, AJ







14/12/2000



























Application
for "guide-lines".







The High
Court has not been established to settle academic questions of law or
to advise a litigant how to regulate his affairs or how to conduct
prospective litigation. The High Court can make a declaration of
rights in terms of Section 16(4) of the High Court Act. The High
Court pursuant thereto declared that where an accused is released by
virtue of the provisions of Article 12( 1 )(b) of the Constitution in
that the trial has not taken place within a reasonable time, such
release will not constitute a permanent stay of prosecution.



The Court
disagreed with other dictum in
State
v Heindenreich
1995
NR 234 and agreed with the statement in
State
v Strowitski
1995(1)
BCLR 12 (Nm).
















HENDRIK
MULLER VAN AS



FIRST
APPLICANT











PAUL
NICOLAAS ADONIS



SECOND
APPLICANT

















and















THE
STATE,



HEREIN
REPRESENTED BY





THE
PROSECUTOR-GENERAL



RESPONDENT













CORAM:
SILUNGWE, Jet LEVY, AJ et MANYARARA, AJ Heard on: 08.12.2000



Delivered
on: 14.12.2000



JUDGMENT



LEVY, AJ: In
this matter first applicant is represented by Mr Z J Grobler while
respondent is represented by Mr D F Small.











On 3rd
March 2000 first applicant issued Notice of Motion out of the High
Court purporting to invoke the provisions of Rule of Court 33(4) and
by agreement between the parties as a result





of
this "application" on 24
,h
March 2000 the High Court made the following order:















"It is
ordered







1. That the
following questions of law is hereby disposed of separately before
the application for a permanent stay of the criminal proceedings is
decided on the merits and/or the criminal trial against the
Applicants proceeds:







1.1 That the
Honourable Court provide guidelines as to the procedure to be
followed and the legal principles applicable to an application for
the permanent stay of criminal proceedings in terms of an Accused
person's right to a fair trial in terms of Article 12 read with
Article 25(2) of the Namibian Constitution, in particular:







al Can the
accused person proceed by way of affidavit in an application by
Notice of Motion, i.e. does civil
procedure
apply
to such an application or







a2 must the
application be brought by way of
viva
voce
evidence
in the criminal trial itself, i.e. a type of trial within a trial
and applying rules of criminal procedure.







bl Can an
application for stay of criminal proceedings only be brought before
the criminal trial actually commences or







b2 at any
stage before judgment if during the trial it appears that a serious
irregularity occurred in the proceedings before the trial court, or
from the evidence presented that serious irregularities occurred
before the trial commenced.







C Can an
accused person's right to a fair trial be derogated from or
suspended in any way in particular:







cl If during
a criminal trial it becomes clear that an accused person is an
aggrieved person as contemplated by Article 25(2) of the Namibian
Constitution, can he apply immediately for a permanent stay of the
proceedings or must he first exhaust all his possible remedies in
terms of the Criminal Procedure Act.







c2 Can the
trial judge order that the application for a permanent stay of the
criminal proceedings be struck from





the
roll as not being urgent and order that the criminal trial must
proceed, or are all applications for a permanent stay of criminal
proceedings inherently urgent in terms of the provisions of Article
24(2) of the Namibian Constitution and must be disposed of on the
merits.







c3 Does an
application for the permanent stay of criminal proceedings
immediately suspend the continuation of the criminal trial until the
application has been disposed of.







c4 Can the
right to a fair trial in terms of Article 12 of the Namibian
Constitution be
suspended
in terms of any Rule of Civil or Criminal Procedure for example by
insisting that Section 317 of the Criminal Procedure Act must be
applied.







c5 Is there
a duty on the Trial Judge as soon as it comes to his attention that
a serious irregularity occurred, to
mero
motu

adjudicate on the irregularity in relation to a fair trial for the
accused person.







dl Can only
the Trial Judge adjudicate on an application for a permanent stay of
criminal proceedings after the criminal trial has commenced or







d2 can any
judge adjudicate on the application for a permanent stay of the
criminal trial after the criminal trial has commenced and







d2.1 a copy
of the record of the criminal trial up to that stage be placed
before him to consider the seriousness of the irregularities
complained of.







e. Does
the credibility and/or veracity of State witnesses that
testified
in the trial in relation to irregularities that occurred in
the
pre-trial period, play any role in the investigation to the
seriousness of the irregularities complained of.







f. Must
the evidence given in the criminal trial be disallowed as hearsay if
another Judge must decide whether the Accused is enjoying a fair
trial.







1.2 Is the
State entitled to an order as to costs if the application for a
permanent stay of criminal proceedings is unsuccessful in that
Article 25(4) of the Namibian Constitution only makes provision that
monetary compensation in respect of any damages suffered





by
aggrieved persons can be paid and the content of an application for
a permanent stay of criminal proceedings is basically criminal in
nature.




  1. That this
    application is regarded as urgent in that a trial date for the
    hearing of the above questions of law be allocated as soon as
    possible, subject thereto that the date be settled with the
    Registrar.



  2. That the
    relief sought in prayer 3 be decided by the Judge-President."








Mr Grobler
maintained that the object of the application was to provide
"guidelines as to the procedures to be followed and the legal
principles to be applied to an application for the permanent stay of
criminal proceedings".











The High
Court has not been established to settle academic questions of law
or to advise an applicant on how to regulate his affairs or how to
conduct prospective litigation. The aforesaid is adumbrated in
Article 80(2) of the Constitution of the Republic of Namibia which
provides







inter
alia:















"The
High Court shall have original jurisdiction to hear and adjudicate
upon all
civil
disputes

and
criminal
prosecutions
,
including cases which involve the interpretation, implementation and
upholding of this Constitution and the fundamental rights and
freedoms granted thereunder











It is clear
from the aforegoing that the emphasis is on "disputes" and
"prosecutions". These may include matters relating to the
Constitution but the operative words remain "disputes" and
"prosecutions".















First
applicant purports to apply to this Court in terms of Rule 33
(4).
This
High Court Rule



which
relates to civil law disputes and actions, provides, as far as is
relevant hereto;















"If it
appears to the court
mero
motu
or
on the application of any party that there is,
in
any pending action
,
a question of law or fact which may conveniently be decided either
before any evidence is led or separately from any other question,
the court may make an order directing the trial of such question in
such manner as it may deem fit, and may order that all further
proceedings be stayed until such question has been disposed of:







(My
emphasis)







II
is
clear that this Rule relates to, and can only be invoked in respect
of, a "pending action". The Rule of Court is not there for
some academic exercise. Mr Grobler at first contended that the
application was brought for the benefit of the public and that it
did not relate to a particular action or trial. Eventually, however,
Mr Grobler was driven to concede that there was indeed an action to
which this application of first applicant had a direct relationship.
The action was a criminal trial.











Both
applicants are being tried for murder and the trial is pending
before Mr Justice Mtambanengwe. He also eventually conceded that a
similar application to this one was brought before Mr Justice
Mainga. Mr Grobler says, he did this because the presiding judge
Mtambanengwe, J., was on long leave. Mainga,J., dismissed the
application. According to Mr Grobler the learned judge, Mainga ,J.,
did not deal with the merits of the application but dismissed it
because Mtambanengwe,J., was seized with the criminal trial, and
therefore Judge Mainga said the matter should be dealt with by him.















On 8th
October 1990 the High Court Act (No. 16 of 1990) was duly
promulgated and section 2





thereof
which must be read with section 16, provides:















"The
High Court shall have jurisdiction to hear and to determine all
matters which may be conferred or imposed upon it by this Act or the
Namibian Constitution or any other law."







The term
"any other law" refers to any other statutory provisions
as well as to the Common Law. In terms of the Common Law the Supreme
Court of the various Provinces in South Africa including the Supreme
Court of South West Africa had "inherent jurisdiction",
that is jurisdiction which was not prescribed in any statute.
Accordingly the term "any other law" in section 2 includes
that inherent jurisdiction.















In Ex
parte Millsite Investment Co. (Pty) Ltd
1965(2)
SA 582 (T) the Court said at 585 G-H;















"Apart
from powers specifically conferred by statutory enactments and
subject to any specific deprivations of power by the same source, a
Supreme Court can entertain any claim or give any order which at
common law it would be entitled so to entertain or give. It is to
that reservoir of power that reference is made where in various
judgments Courts have spoken of the inherent power of the Supreme
Court: see e.g.
Union
Government and Fisher v West,
1918
A.D. 556 at p. 572-3. The inherent power claimed is not merely one
derived from the need to make the Court's order effective, and to
control its own procedure, but also to hold the scales of justice
where no specific law provides directly for a given situation."











Article
138(2)(a) of the Constitution provides, as far as is relevant
hereto:















"The
laws in force immediately prior to the date of Independence
governing the jurisdiction of Courts within Namibia, the right of
audience before such Courts, the manner in which procedure in such
Courts shall be conducted and the power and authority of the Judges,
Magistrates and other judicial officers, shall remain in force until
repealed or amended by
Act of Parliament, "











Section 16
of the High Court Act provides:















"The
High Court shall have jurisdiction over all persons residing or
being in and in relation to all causes arising and all offences
triable within Namibia and all other matters of which it may
according to law take cognisance, and shall, in addition to any
powers of jurisdiction which may be vested in it by law, have power-




  1. to hear and
    determine appeals from all lower courts in Namibia;



  2. to review
    the proceedings of all such courts;



  3. subject to
    the provisions of this Act or any other law, to hear appeals from
    judgment or orders of a single judge of the High Court;



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








The High
Court can in terms of Section 16(d) make declaratory orders in
regard to all those matters in respect whereof it has jurisdiction
and indeed, it is possible that such declaratory order could amount
to the "guidelines" referred to by Mr Grobler.











Mr Grobler
confirmed that a declaratory order in respect of the meaning and
effects of Article 12(l)(b) of the Constitution is what he is
seeking.











Article 88
of the Constitution provides for the appointment of the
Prosecutor-General and prescribes the latter's functions.
Sub-Article 2(a) provides:



"(2)
The powers and functions of the Prosecutor-General shall be:







(a) to
prosecute, subject to the provisions of this Constitution, in the
name of the Republic of Namibia in criminal proceedings;"







The
Sub-Article restricts the Prosecutor-General to prosecuting "subject
to the provisions of the Constitution". Inasmuch as Article 80
gives the High Court the power to interpret, implement and uphold
the Constitution, the High Court is specifically authorised to
ensure that the Prosecutor-General prosecutes subject to the
Constitution. The declaratory order therefore can affect criminal
prosecutions.











From the
terms of first applicant's Rule 33(4) application and from the Order
of Court of 24
th
March
2000 granted because of the agreement of the parties it is apparent
that Mr Grobler presupposes that Article 12(l)(b) makes provision in
our law for a permanent stay of criminal proceedings and that he
wants to invoke such proceedings in order to stay the murder trial
from continuing before Mr Justice Mtambanengwe. If this court
decides that on a proper interpretation of Article 12(l)(b) a person
released by virtue thereof does not receive a permnent stay of
prosecution, Mr Grobler's application collapses whether it is
brought allegedly by virtue of the provisions of the Constitution
and the Rules of Court or under Common Law.











Mr Grobler
says that in the
State
v Heidenreich
1995
NR 234 the High Court held that in terms of Article 12(l)(a) and
(b), where a court ordered the release of an accused, because his
trial had not taken place within a reasonable time, such accused had
a permanent stay of prosecution in respect of the offence with which
he was being tried.



In that
case, the trial of Heidenreich had been delayed for a considerable
time in a Magistrate's Court and when the legal representative of
the accused applied for the release of the accused in terms of
Article 12(l)(b) it was granted. Thereafter the matter came on
review before two judges of the High Court. The points set down for
argument before the High Court were as follows:















"1. Was
the magistrate correct in holding that the trial of the accused had
not taken place within a reasonable time as required by art 12(l)(b)
of the Constitution?




  1. If so, is
    the magistrate's court a competent court in terms of art 25(2) to
    take the necessary action to enforce or protect the right of an
    accused to a fair trial?



  2. Was it
    competent for the magistrate to order that the accused be released
    and what is the effect of such order?"








As to point
1, the Court held that the magistrate was incorrect in holding that
the trial of the accused had not taken place within a reasonable
time. The decision of the magistrate therefore was set aside. Any
remarks therefore by the Court on the effect of an order to release
an accused where the trial had not taken place within a reasonable
time, was entirely obiter.











Furthermore,
the Court held that it was competent for the magistrate to make an
order in terms of Article 12(l)(b) releasing an accused. The learned
judge relied on Article 5 of the Constitution which enjoined the
judiciary to uphold the fundamental rights enshrined in the
Constitution. There can be no doubt that this is correct but if a
magistrate has the jurisdiction to make such an order (which I
believe he has) the effect of such order cannot enlarge the
jurisdiction of a magistrate. The order granted by the magistrate
must be within the ambit of the magistrate's jurisdiction.



The learned
judge pointed out that the jurisdiction of the Magistrate's Court
was prescribed in Act 32 of 1944. In terms of Article 138(2)(a)
quoted above the jurisdiction of the magistrate prior to
Independence was to remain in force as therein provided until
"repealed or amended by Act of Parliament". This was laid
down in the Constitution which is the Supreme Law of Namibia
(Article 1(6)). There has been no relevant Act of Parliament. The
Magistrate's Court's jurisdiction is therefore the same as it was
before Independence. If the effect of the Order made by the
magistrate to "release" an accused is to grant a permanent
stay of prosecution the magistrate would be exceeding his
jurisdiction. If a magistrate has the power "to release"
an accused which by virtue of Article 5, he/she has, by necessity
"release" does not have the extended meaning given to it
in
Heidenreich's
case.











Furthermore,
the High Court (as opposed to a Magistrate's Court) can also
"release" a person whose trial has "not taken place
in the High Court within a reasonable time" but such an order
would also not grant an accused a permanent stay from prosecution
for the same offence, as he has been neither convicted nor acquitted
as required by Article 12(2). I have set out above the jurisdiction
of the High Court, and it is extremely doubtful whether as therein
provided or in Common Law the High Court has the jurisdiction to
grant an accused a permanent stay of criminal prosecution merely
because he has been "released" in terms of Article
12(l)(b).











With great
respect to the learned judges who heard
Heidenreich's
case,
the effect of Article 12(l)(b) was never intended to be more than
release "from arrest or from onerous conditions of bail"
as decided by O'Linn J in
State
v
Strowitski
1995(1)
BCLR 12 (Nm) (judgment delivered on 22
nd
April 1994).



The learned
judges in
Heidenreich's
case
gave to the word "release" a meaning similar to "acquit".
At page 239 I to J, the Court said;















"The
general approach when construing constitutional provisions is that
the provisions are to be 'broadly, liberally and purposively'
interpreted:
Government
of the Republic of Namibia v Cultura
2000
and
Another
1994(1)
SA 407 (NmS) at 418F, and if this canon of construction is to be
relied upon it is as well to identify expressly the underlying
purpose of the constitutional provision under consideration."







With due
respect, this "canon of construction" does not permit a
court to give a word the meaning it does not have. In
Minister
of Defence v Mwandinghi
1993
NR 63 at 69 I to J a Full Bench in a joint decision by Berker, CJ,
Mahomed AJA and Dumbutshena AJA said the following:















"H M
Seervai, citing what was said by Gwyer CJ, remarked, in
The
Constitutional Law of India
3rd
ed vol I at 68, that







' a broad
and liberal spirit should inspire those whose duty it is to



interpret
the Constitution; but I do not imply by this that they are free to
stretch or pervert the language of the enactment in the interests of
any legal or constitutional theory, or even for the purposes of
supplying omissions or correcting supposed errors.'"







It is trite
that a court must start with the interpretation of any written
document whether it be a Constitution, a statute, a contract or a
will by giving the words therein contained their ordinary literal
meaning. The Court must ascertain the intention of the legislators
or author or authors of the document concerned and there is no
reason to believe that the framers of a Constitution will not use
words in their ordinary and literal sense to express that intention.
As was said by Innes CJ in
Venter
v R
1907
T.S. 910 at 913;



"By far
the most important rule to guide courts in arriving at that
intention is to take the language of the instalment, or of the
relevant portion of the instrument, as a whole; and, when the words
are clear and unambiguous, to place upon them their grammatical
construction
and
give them their ordinary effect
."
(My emphasis)















This has
been followed in Namibia on countless occasions. Where a particular
word in its ordinary sense has more than one meaning, an ambiguity
can arise and only then does one have recourse to other methods of
ascertaining the intention of the authors concerned as to what the
meaning was which the authors intended the word should have.











One need not
consult a dictionary for the meaning of the word "release".
It is frequently used by members of the public and by lawyers in
courts and in documents. In the instant case, the word is used in
Article
12
which
deals with a fair trial. In the same Article the framers of the
Constitution used the word "acquit" and dealt with the
effect thereof, namely, having been acquitted an accused could not
be charged again.











These two
concepts namely "release, because the trial has not taken place
within a reasonable time" and "acquit" where the
trial has been completed appear in the same Article. It is therefore
logical to contrast the concepts and not to give them the same
meaning.











It is true
the framers of the Constitution did not recite what the effect of a
"release" would be. This is not a
casus
omissus
as
it was not necessary to elaborate on the normal consequences of a
person who is being prosecuted, being released. A person who is
prosecuted is arrested in order to be prosecuted but may be on bail.
Where such person is released from arrest and bail it does not
terminate the prosecution. One can attend a trial on a "warning"
from the Court and one can be on one's own recognisances and still
be prosecuted.















In R
v Stevens
1969(2)
SA 572 (RAD) at 577, Beadle CJ said;















"...when
the meaning of a section is plain...., the mere fact that there may
be a
casus
omissus
in
the section does not seem to me to justify a departure from its
plain meaning and this is more especially so when that plain meaning
appears to accord with the intention of the Legislature."







In any event
there is no need to interpret the Sub-Article as having a
"casus
omissus".
In
Dhanabakium
v Subramanian and Another
1943
AD 160 at 170-1, Centlivres, JA said;















"The
conclusion at which I have arrived avoids what would otherwise be a
casus
omissus
in
sec. 70 and it seems to me that if a reasonable construction of an
Act does not lead to a
casus
omissus
while
another construction does lead to that result, the construction
which should be applied is the one which does not lead to that
result."







I conclude
this aspect by once again referring to the Full Bench judgment in
Mwandinghi's
case
quoted above, where the learned judges referred with approval to the
remarks of Gwyer CJ which included a warning that in the
interpretation of Constitutions one should not "supply
omissions" even when applying that "broad and liberal
spirit" for interpreting Constitutions.











To give the
word release its ordinary meaning (to release from arrest or bail)
fits in with the scheme of the Constitution and with the existing
Common Law and the Criminal Procedure Act (Act 51 of 1977)
applicable before Independence in Namibia and since Independence by
virtue of Article 140 of the Constitution. An example illustrates a
situation which could arise if the
obiter
dictum
in
Heidenreich's
case
is correct.











Theft in
terms of the Common Law is a continuing offence.

Sv VonElling
1945
AD 234











An accused
embezzles and steals N$ 10,000,000-00 over a period of years and
invests it in a bank in Europe. He is arrested but due to his
cunning, the investigation is involved. A person cannot take
advantage of his own bad faith. Therefore any delay in his trial
caused by his own cunning will not accrue to his benefit in deciding
whether there has been an unreasonable delay. The State, however,
similarly cannot benefit from its own ineptitude and if due to such
ineptitude the investigation after his arrest is unduly and
unreasonably delayed, the accused would be entitled to his release
in terms of Article 12(l)(b). If that meant that prosecution was
permanently stayed, the accused would be able to enjoy the spoils of
his crime with impunity while still committing theft. This could
never have been intended by the framers of the Constitution.











Accordingly,
I am satisfied that should a person be "released" in terms
of Article 12(l)(b), such person would not thereby be granted a
permanent stay of prosecution.











Mr Grobler
contended that Article 5 of the Constitution enjoins the Courts to
enforce the fundamental human rights of an accused which included
his client's rights to a fair trial. He said the enforcement of such
rights could not be suspended. Therefore if during a criminal trial
or even before the trial, some fundamental human right is breached
by the State, an accused can immediately apply to the Court hearing
the criminal case or to another judge of the High Court to stay the
prosecution. Such accused, says Mr Grobler, would not have to wait
to take the case on appeal.











The Criminal
Procedure Act of 1977 is still applicable in Namibia by reason of
Article 140 of the Constitution. It must be applied unless repealed
or amended by an Act of Parliament or unless some provision is
declared unconstitutional by a Court of Law. If an accused considers
that one or more of his/her fundamental human rights are infringed
during the case or in respect of a trial, he/she in terms of the
Criminal Procedure Act, can and should raise his or her objection,
with the Court seized with the trial. Should that Court not uphold
the objection immediately a special entry can be asked for. At the
conclusion of the case, the Court can reĀ­consider the objection
and acquit or convict. If its convicts, the accused can appeal and
raise his objections afresh.











More often
than not the very right which the accused may contend is infringed
is closely associated with the prosecution and cannot be decided
until the prosecution is finalised. A decision on the alleged
infringement is therefore not delayed by the accused having to wait
for final adjudication. Should the Court immediately during the
trial uphold an accused's objection as to some infringement, the
question is whether or not the infringement is so fundamental and
trial related that the continuation of the trial must be terminated
and if the decision is made on appeal, whether or not the conviction
should be quashed. This does not necessarily mean that the accused
cannot be tried again. A decision to prosecute afresh depends on the
nature of the irregularity or infringement e.g if the Court was
incompetent from the commencement, a competent Court can rehear the
matter.











Mr Grobler
has not informed this Court of the nature of the alleged
irregularities or human rights infringement of which he complains
and this Court cannot speculate in respect thereof. There are many
cases which have been decided on appeal which have quashed
convictions because an accused has not received a fair trial. These
cases should provide the 'guidelines" which Mr Grobler seeks.











Mr Small
contends that in
S
v Shikunga and Another
2000(1)
SA 616 (NmS) at 629 C to 630 F the Supreme Court considered whether
pre-trial irregularities could form the basis for an application for
a permanent stay of criminal proceedings and rejected the
contention.











In view of
the fact that Mr Grobler has not placed material facts before this
Court, this Court is unable to make any order whatsoever on this
aspect but in principle if Mr Small's contention as to the meaning
of the
Shikunga
case
is correct this Court unreservedly accepts the Supreme Courts
decision.















To sum up
the Court's order is:













In
terms of Section 16(4) of the High Court Act it is declared that
where an accused is released by virtue of the provisions of Article
12(l)(b) of the Constitution in that the trial has not taken place
within a reasonable time, such release will not constitute a
permanent stay of prosecution.













I
agreeFor
First Applicant: Instructed by:



















For the
Respondent: Instructed by:



Advocate Z J
Grobler Messrs A Louw & Co



















Advocate D F
Small The Prosecutor-General